Ms Lai (not real name) was very distressed and repeatedly called me in the end of January 2010, to ask help because her former Indonesian domestic helper who had voluntarily resigned, was pursuing a legal claim against her for payments that she had made but which the helper claimed that she had not.

Ms Lai found her domestic helper through the AGENCY (one of HK top agencies). She needed a helper immediately and the agency introduced her to one helper who she was told was finishing her contract and thus could work immediately without having to leave the country.  However after hiring her and paying agency fee to the agency, the worker only worked one week. During this week, the agency called and said that actually she does  need to ‘just go out of Hong Kong for a little bit’ to process – the worker would go to China to do so. The employer asked how long; the agency said probably 1-2 weeks. The – and actually had to go the mainland for one month for processing her visa. (1)

The helper came back and worked during July and August. This work was done before the visa was issued; the agency never informed the client that employing a worker who does not have her work visa is in fact illegal for both worker and employer, and risks a large fine and even jail term. (2) Using a form given by the agency, which was in Indonesian, the employer made sure the helper signed that she received the payment for the work. Actually this work was done before the visa was issued by the Hong Kong government, so evidence of this work could incriminate the employer and worker.

Finally the helper’s visa came out on September 11. The employer has two twin babies, around 1 year old. In the home the mother-in-law is also staying.

The work is heavy and tiring. Actually the employer does not particularly prefer Indonesian helpers, and does not even really want to have a helper, but feels she has no choice, because she has twin babies and also is running a store, and she needs the help. She has interviewed many Filipina workers but they refuse, when they realize the work they will have.

After several months, on December 1, the worker said she wanted to leave immediately. The employer said, no, you need to give one month notice first, or else pay one month’s salary in lieu of notice. The worker did not know this and the employer called the agency to ask the agency to explain it to her. The worker did not want to pay so she agreed to work one more month. But after a few more days, on December 17, she said she could not stay longer and wanted to leave immediately. So the employer did all the paperwork and made all the payments, making sure to get receipts for each thing, including air ticket, the past month’s salary (with part deducted because of days not worked). She also took videos of the helper signing these things, and of her making a phone call to the agency regarding her termination of the contract and going to the boarding house of the agency, and of her saying goodbye to the employer (she repeatedly bowed and said sorry).

After giving notice, during her extra days working, the worker made many mistakes, so their relationship was not good. For example she found bruises on her baby after coming home from work, and her clothes were messed up from being burned by the iron. The worker had not done these kinds of things before, so the employer suspects it might have been intentional.

But when the employer got a notice in the mail, from the Labour Tribunal, that the worker was suing her for failure to pay salary and air ticket, she was extremely shocked.

The worker made an elaborate story to the police: the employer wanted to borrow money from the helper, forced the helper to go to the bank to withdraw money; but the bank was closed, whereupon the employer got angry and terminated the worker without notice, and did not pay the worker any of the money due to her, and forced her to leave the home with no money. (3)

The employer was worried about this case. When asked why the worker would plot this elaborate scheme to falsely accuse the employer, she was told that by having a case against her employer, she could extend her visa and have more time to find a new employer, instead of having to go back. She suspects that the agency instructed the worker to do so, and that the agency planned that the worker would share the money from the lawsuit with the agency.

The employer tried to contact the helper through the agency but the agency does not help her. Instead, the agency calls her to introduce a new worker.

Originally the employer had paid a two-for-one package, so if the first worker does not work out she can employ a second one without additional agency fee. However the first contract was in the name of the mother-in-law. When trying to hire a new helper, the agency told her because of the case that was ongoing, the mother-in-law’s name was blacklisted at the Indonesia Consulate and she could not apply the free second helper deal, and would have to make a new contract with a new helper, and pay a new agency fee! (4)

The employer tried to call the Indonesian Consulate to confirm whether this was true, because she doubted this was true and that it should be a reason to charge her again. So far she could not find the right telephone number to get through.

Then the agency introduced to her a worker who they said was end-of-contract. She signed a contract with this new helper, and paid the agency 2,800 agency fee and 1,800 for two years insurance for the helper. Then when January 26 came, the day for the new helper to come, she called the agency and the agency said, oh that helper already found another job!

But we will help you find someone else. (5) So she is still stuck with no helper, and the agency does not give her money back though that helper is gone, and just holds her money, saying they will find another one for her.

The agency tells the employer that the former helper has already found another employer. Yet it refused to let the employer get in touch with that helper.

The employer sent documentation showing the Labour Tribunal that she had indeed made the correct payments to her helper. She even sent the receipts for payments in July and August, to prove without a doubt that she owes no payments. However after she did so, the officer informed her it was breaking the law, and though the officer believed that the employer genuinely was not aware (or else she would not have faxed the evidence!) she could not ignore it once it came into her knowledge. So she may be prosecuted for that as well. This is clearly the fault of the agency, which encouraged her to let the worker work without a visa, without informing the employer that this is an illegal act carrying a severe punishment.

(Below is just my additional comments after talking to someone about this case.)

A member of an Indonesian union who heard about this case believes it is possible that the agency allowed the worker to work just long enough to pay off the high recruitment fee paid by the worker; and once the loan is paid off, arranges or encourages breaking of the contract, which gives them the chance to charge new fees to the employee, and new fees to the worker.

It takes months for a worker to pay off their recruitment fee which they paid to an agency before arriving in Hong Kong; they can only earn money to send back home after it has been paid.

If the worker is terminated before payment, they will remain in debt; and if the worker cannot keep her job after payment of her loan, she is effectively enslaved, because she came in order to work, and yet is never able to earn money for herself. All her work is to pay off loans incurred to pay agency fee. The agency makes money at each new contract entered by the worker, and does not wait for problems and failures, but may be actively engineering them, to create profit for itself, at the cost of the workers’ freedom, and the cost of legal risk to both worker and employer, and at the cost of stability for the employer’s family. The agency loses nothing by telling utter lies and mistruths; all costs are borne by others, and all troubles that fall on others only end up with greater turnover, leading again to agency profits.

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In the above case, you can see:

Agency deceives, or leads employer into legal violations, in multiple ways:

(1) The agency misled the client (employer) about the status of the worker.

(2) The agency led the client to employ a migrant domestic worker whose visa had not yet been approved, causing the employer and worker to risk high fines and imprisonment.

(3) The agency most likely is the party which created this elaborate and farfetched story for the domestic worker to tell, not the domestic worker, for the purpose of extending the worker’s visa until she could be ‘farmed out’ again to pay yet more agency fees, and also extract more money from the employer by pressuring the employer to ‘settle’ (for a falsely accused wrong).

(4) The agency uses a shallow reason to resist letting the employer claim the ‘two-for-one’ deal, and forces the employer to pay afresh, to hire yet another worker.

(5) The agency, after having taken the agency fee for a new hire, failed to provide the worker as promised, without compensating the disappointed employer but rather holding the money ‘captive’ until the employer finds another worker through the same agency.

The agency is the main party taking advantage of a dissatisfied domestic worker and also helpless employer. Similar situations have been happening for years and years.

When employer focus their blame entirely on domestic workers, it is only making agencies more powerful, and causes employers to change workers more and more. The more employers change workers, the MORE money agencies earn, the more they continue their tricks.

The focus must be on regulating employment agencies – they must be forced to PAY for the problems they cause to employers and workers, or else the problems will only continue.