Introduction

After several months of heated debates, new rules on window cleaning by foreign domestic helpers (“Helpers”) were announced recently. New clauses are to be added to employment contracts of all Helpers.  How can the new employment clauses give more protection to Helpers? What is the potential impact of the new rule to employers and what should they be aware of when asking their Helpers to perform window cleaning duties?

What has happened over the past months?

In 2016, there have been several accidents where Helpers plunged to death from residential buildings while cleaning windows of the flats.  Concern groups and hundreds of Helpers expressed their resentment to the lacklustre work safety regulations by taking to the street to urge the Hong Kong government to ban window cleaning duties.  The accidents have revealed the alarming safety problem of Helpers and triggered a unilateral decision on the part of the Philippines consulate to ban window cleaning by Helpers from the Philippines.  Although the decision was later put on hold, it prompted Hong Kong government to step in and act on the matter in order to secure safety of Helpers while carrying out their duties.

After having meetings with representatives from recruitment agencies and Helpers’ organizations, the Labour Department proposed new work safety rules, one of which demands an adult be present to supervise while a Helper is cleaning windows.  The proposed rule mirrored the Singaporean law which provides that Helpers can only clean windows of high-rise buildings with grills and with sufficient safety precautions.  Given that there are mostly high-rise buildings in Hong Kong, and that many of the employers are working parents of a nuclear family, this proposal by the Labour Department has aroused controversies and was heavily criticized as impractical.  On 14 November 2016, Commissioner for Labour Carlson Chan Ka-shun officially announced the new clauses regarding window cleaning rule which will take effective from 1 January 2017.

The new rule

After considering various factors and feedback, the new clauses to be added in new employment contracts of Helpers signed from 1 January 2017 onwards include the following requirements:

• Only windows with locked or secured grilles can be cleaned by Helpers, unless the windows are on the ground level, or next to a balcony or corridor.
• No part of their body will be extended outside the window beyond the ledge except their arms.

The original proposed requirement of adult supervision was dropped.

What to do with existing employment contracts?

Many employers may worry about whether their existing contracts with their Helpers may be caught by the new rule.  This worry can be eased.  The new rule does not apply to contracts that was signed on or before 31 December 2016 and sent to the Immigration Department on or before 27 January 2016.

On the other hand, when an employer renews the employment contract with his Helper next year, the new clauses regarding window cleaning rules must be included in the new employment contract.  In the circumstance, it is estimated that the total of some 350,000 Helpers in Hong Kong will all be under the protection of the new rule around two years later.

Implications to employers

Employers will not be criminally liable if they breach the new clauses in the employment contract.  However, in case of window cleaning accidents, they may be held jointly liable to compensate the Helpers together with insurance companies.

Besides, upon employers’ breach of the new clauses, Helpers can file complaints with the Labour Department or Labour Tribunal and request to terminate their employment contract.  In cases where Labour Tribunal decides to terminate the contracts, employers have to pay for one month’s notice and long service payment, if any.

Conclusion

The announcement of the new rule has attracted comments from various concern groups.  Some criticized the insufficient protection and the lack of punishment for violation of the rule, while some worried that it would be too demanding and impractical a rule for the employers to comply with.  In any event, its effectiveness is to be seen in the coming years.  Even though the rule may take time to apply to some existing employees, employers are always advised to take extra care to ensure occupational safety and provide a safe working environment for their Helpers.