Posted by
Moppet
17 yrs ago
Agree as above, you have no right to ask for her passport, what if she asked for yours as security in case you decided not to pay her ?
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Keeping her passport is completely illegal. Just tell your maid that you do not want her getting a loan, and certainly not giving your address (she has to), and tell her that you feel very strongly about this.
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Keeping hold of a passport is illegal and could get you into serious trouble in the future should you have a problem with your helper.
Loans are something you cannot stop, certainly you may not be happy about it but your helper is only your employee, you do not own him / her. What they do in their time off is not your business, with obviously the exception of illegal activities.
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Really? It will become a habit? Are you speaking from your own personal experience or just guessing? I think just guessing......
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Perhaps you can ask her to show you her passport when you pay her salary... just an idea.
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BUDA
17 yrs ago
Years ago, yes banks do take domestic helpers passports when they make a loan but now government have ruled against it.So they no longer do it.I heard this from a friend who works in a bank and used to do this type of procedure.
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While banks no longer do it, other lenders still do. My last helper pledged her passport and FDH contract for a loan. I've heard that lenders do not need to be shown a passport in order to lend. They lend against an FDH contract. There is no law against not giving a counterpart of the FDH contract to your helper, is there?
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beancurd you stated it will become a habit. If they borrow once they will borrow again. I asked if you had anything to back up that statement and judging from your reply above you do not. so you are saying IF someone borrows money they will do it again and again? never seen that! i've borrowed money from banks before but i have no loans, and i don't care whether you know that or not!
being harassed by a bank or lender is a completely different thing and does happen but not as often as you would think.
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aemom
17 yrs ago
Please remember the Forum rule:
Answers & Advice: Each forum is set up to allow people to get answers and advice to topic-specific questions. They are asking for help – not sarcastic or insulting comments - so please, if you have nothing constructive to post please refrain from participating.
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Ed
17 yrs ago
Time to chill.... although I believe it is illegal to hold a passport as security on a loan, I understand that there are plenty of money lenders/loan sharks (not banks) who still keep the passports when they make loans to helpers.
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There have been a number of assertions that an employer holding a DH's passport is breaking the law by doing so but no authority cited in support of the claim.
Can one of the posters making this claim please advise which law which is being broken.
Is it a crime? In which case the employer could be prosected by the police.
Is it a civil wrong (eg the tort of conversion)? In which case the DH could take legal action to recover her property.
Is it a right at common law or a statutory offence? If statutory based, then does the provision apply in this situation (eg if it is a part of the securities law it might not apply to a domestic arrangement).
I am happy to be proven wrong, but my own view is that it is not illegal for an employer to hold his/her DH's passport in safe-keeping with her consent (and presumably, handing over the passport implies consent).
As to the original question (and assuming that I'm right about it not being illegal), it seems to me that holding the passport might prevent the helper from getting a loan. Whether it is a good thing to do however, is another question.
I have always taken the view that trust and responsibility are important cornerstones to a successful domestic relationship. Taking a DH's passport from her may undermine both parties' trust in each other and her sense of responsibilty ( and wouldn't you want to trust the person you've given responsibilty for your children and your home?).
I think that it is better to treat your helper as a responsible adult (giving her her passport to look after and the freedom to enter into loans if she chooses) than as an untrustworthy child, incapable of making decisions about her own life.
Yes, if your DH keeps her passport you run the risk that she will default on the loan. However, if you have chosen a sensible person, it seems to me to be less likely that she will default on the loan (or even borrow in the first place) and more likely that she will try to do the best job she can - if you treat her like a responsible adult.
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Is is listed on one of the government website and I have seen it in on of the handbooks I have but don't have time to search for it. A quick scan of migrants.net does bring this up:
1.) Should my employer or my agency "keep" my passport or other travel documents of mine?
When you arrive in Hong Kong, some employers or agencies may ask you to keep your passport. By law, you have the right to refuse to surrender your passport and other personal documents to your employer or your agency staff member. It is unlawful to force you to give up these documents. If this happens, you should contact the Police or your Consulate for assistance.
http://www.migrants.net/_resources/migrant_rights.htm#1
Search enough and you'll find this on either the immigration or labour websites, can't remember which one.
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Evildeeds
The extract you have quoted supports my view, that it is not illegal for an employer to hold an employee's passport with his/her consent.
Saying that an employee has "the right to refuse to surrender" his/her passport and that it is "unlawful to force you to give up these documents" is very different from saying that it is illegal for an employer to hold the employee's travel documents.
If the employee does not exercise his/her right of refusal (and I expect that many will be too scared to assert such a right) and there is no force on the part of the employer there is no illegality.
Clearlymigrants.net is discouraging the practice and encouraging migrants to assert their rights to control their property. However, whether a new DH would be brave enough to risk jeopardising his/her job if the employer asked to hold the passport "for safe-keeping" is a different matter.
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I'm sure it listed on one of the government site that you cannot ask for the passport, but as I say can't remember which one but did see a couple of weeks ago.
For me I am an employer so I treat my DH as I would any of my other employees. If I wouldn't ask my employees to surrender their passports (and I employ a lot of expats) then I would not ask my DH either. One of the main problems with employers of DH is they do not understand how to be an employer and that's when problems start.
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tgm
17 yrs ago
I always thought keeping the passport was illegal, but having done a quick search I can't find anything to back that up in the FDH guide, Labour Dep't website or Employment Ordinance. However, i recall overseas workers during Chek Lap Kok airport construction complaining their passports had been kept by their employers and the Contractors getting into real trouble with Labour Dept (banned from employing overseas workers..?). The Employment Ordinance covers all overseas workers, including FDH.
In any case I wouldn't have thought it was a good idea if later on you have a dispute with your FDH - I can see real problems with Immigration if she complained to them "but sir/madam took my passport off me when i started working for them...". Would hardly put you in a good light as far as Immigration was concerned.
Even if it isn't illegal to do so, is it reasonable..? Put yourselves in the FDH's shoes, if you were working abroad and arrived in a foreign country to be told you must immediately surrender your passport would you agree to that..?? I don't think that's a reasonable request at all.
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The keeping of workers passports transforms the employment relationship to potential bonded labour under international law and is illegal in HK.
To Short time specifically:
It is illegal for Agencies to keep the passport of any worker they hire/hire out. They should know this.
If you friend has had her passport retained she should ask her employer to come with her to get it back as some agencies refuse to hand them over. If neccessary state that the helper is needed to to accompany the family on a trip to Macau (for example) and they need the passport back.
If she cannot get her employer to help she can contact anyone of these support groups as well as going to immigration and/or labour department
Asia Pacific Mission for Migrants - Telephone: 2723-7536
Asian Migrant Centre - (852) 2312-0031 (852) 2991-0111
Salvation Army Migrant Workers' Counseling and Referral Centre 2893 0081
Association of Indonesian Migrant Workers in Hong Kong 2314 7316
Indonesian Migrant Workers Union 2375 8337
The Hong Kong Coalition of Indonesian Migrant Workers Organisation 2573 4563
United Filipinos in Hong Kong : 2810 4379 2/F New Hall, St John's Cathedral, 4-8 Garden Road, Central
Association of Sri Lankans in Hong Kong 2812 0962
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minidom
While I agree that forced (bonded) labour is illegal in HK, I do not agree that holding a DH's passport by an employer with the consent of the employee (as discussed in my comments above) "transforms the employment relationship to potential bonded labour".
The International Labour Office defines forced labor as: “Work or service which is extracted from any person under the menace of a penalty and which the person has not entered into of his own free will.” Explaining the concept, Senior Specialist at the ILO, Caroline O’Reilly said: “There are two things related to forced labor. A person is working not of choice but is being forced to work and secondly the person is working under the threat of a penalty. Working under slavery-like conditions is how we can define forced labor.”
Forced labour is most commonly a problem with abuse of human rights in matters concerning illegal immigrants (eg forced prostitution). It is extremely unlikley to arise in the situation described here.
My point is that, although (like most posters here) I do not condone or approve of the practice of emplyers holding their helpers' passports (with consent), it is not correct to say that the practice is illegal. Holding a passport without consent is clearly a different matter.
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A helper may feel unable to refuse to hand over her passport to her employer. If this the case, is she deemed to have truly consented?
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Reluctant consent or consent with misgivings is still consent and I think that the act of handing it over implies consent.
It is possible that the FDH could argue the "undue influence" of the employer directed her actions, particularly if she says "I'm not happy about this" or "This makes me very uncomfortable" as she is handing it over. However, "undue influence" (generally a legal defence, ie raised to counter the claim of the person bringing the legal action) would be difficult to establish and it is hard to see the legal context in which it might be raised by a FDH (let alone succeed) in this situation.
Holding a passport without consent (eg if the employer refuses to return it to the FDH upon request) may be actionable by the police and/or give rights to civil action (conversion?) or statutory rights (eg others have suggested offences under the employment ordinance). It seems to be to be extremely unlikely that a FDH would have the resources to sustain a civil action and questionable whether other legal avenues (if available) would be pursued.
I continue to think that the proposed practice is not illegal and, even where it might be (ie where there is no consent) there is likely to sufficient doubt and uncertainty to deter FDHs from proceeding. Even in clear-cut legal cases costs can be significant.
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A quick search of the Philippine Consulate has a link under the "Assistance to nationals" page and guess what it says?
When to call the Police Hotline 999
1.When your personal safety is at stake
2.Sexually harrassed etc
last one the list is
When your employer refuses to give you your personal belongings, passport and documents.
It seems to me that if you insist on this point, you may be sacrificing some part of the employer/employee relationship. Is it about control or trust? If you have hired a girl you trust with your children and household, perhaps you should trust her with her own life decisions......
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