Six Degrees: The Stanford Journal of Human Rights

An Evaluation of the Hands-On Conciliation Policy and Practice of the Philippine Consulate General in Hong Kong
By Michael Tayag Winter 2013

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An Evaluation of the Hands-On Conciliation Policy and Practice of the Philippine Consulate General in Hong Kong
by Michael Tayag
Filipina Migrant Domestic Workers in Hong Kong

In recent years, the Philippines has prioritized debt-servicing to keep in good standing with the International Monetary Fund, a prerequisite for obtaining loans from foreign lending agencies. TIn order to generate revenue, government expenditures in economic and social services have been cut (REF). Meanwhile, middle and lower class Filipinos incur higher taxes, increased cost of living, lower-quality public services, and monopoly control of prices (Ibon, 1997 cited in Parrenas, 2006). One strategy the Philippine government has used to combat these issues is the Labor Export Policy (LEP), which established the Philippine Overseas Employment Agency (POEA) to facilitate labor migration. In 2009, approximately one million Filipinos migrated out of the country, largely on an economic basis (REF). Studies indicate that 34-54% of the PhilipinPhilippinee population is directly dependent on the remittances of overseas family members, comprising 10% of the GDP (Mission, 1998 cited in Parrenas, 2006). Hong Kong, one of the most economically important cities in Asia and the world, represents a major destination for these migrant workers. According to the Hong Kong Immigration Department, the population of foreign domestic helpers was 273,609 (approximately 48% from the Philippines) as of March 31, 2010. As many as 99% of the Hong Kong migrant workers from the Philippines are women. Here I integrate information from background research and interviews to highlight the issues encountered by this significant population of Filipina migrant domestic workers (MDWs) in Hong Kong. MIn particular, my research focuses on the conciliation process through which migrant workers pursue settlement of exorbitant fees charged by foreign and domestic recruiting agencies.

Overcharging and Illegal Collection

The problem of overcharging foreign domestic workers in Hong Kong is rampant. ,with workers paying Recruitment agencies in the Philippines and their principals in Hong Kong force workers to pay these illegally high recruitment fees of up to HK$21,000 to migrate for work.fees These practices help

agencies thrive and profit despite the steep fees they themselves must pay to the government (Mission, 2009). In 2009, Department of Labor and Employment (DOLE) Secretary Marianito Roque issued a memorandum that banned the direct hiring of foreign domestic workers, whereby employers and workers could enter into a contractual working relationship independent of an agency. This memorandum forces workers to pass through recruitment agencies, where they are illegally charged as much as PHP100,000 or more (Mission, 2009). According to the POEA Guidelines for Household Service Workers (HSWs), workers should not be charged any placement fees. However, agencies undermine this policy by continuing to charginge excessive fees without referring to them as placement fees. Workers must often pay insurance fees for unnecessary, and overpriced medical examinations, as well as training fees or brokers fees of amounts arbitrarily set by the agency. particular training activitiesAlAl of the workers interviewed stated he training activities that training only entailed the review of basic skills such as washing dishes and cleaning, rather than skills like operating a dishwasher or vacuum cleaner with which they may not have been familiar. Some workers even stated that they worked as maids during their training (without payment) in the home of the agencys owner or his/her relatives. A 2008 survey by the NGO Mission for Migrant Workers (MFMW) indicated that 46% of workers passing through recruitment agencies paid between PHP60,000 and P100,000, 8% paid more than P100,000, and only 14% paid less than PHP25,000, the approximate legal placement fee before the implementation of the POEA Guidelines in 2009 (Mission, 2009). Some workers borrow from relatives or find other means to pay off their agency fees. often by borrowing The majority of migrant workers, however, have no means of acquiring tens of thousands of pesos. Agencies and loan companies connive to force workers to take out loanss.. Once the worker begins working in Hong Kong, she pays back loans to a financial institution in either Hong Kong or an institution in the Philippines through her relatives. Interest is then split between the recruitment agency and loan company. Agencies use cComplicated

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loan schemes to cover their tracks and disguise the illegal placement fees they charge. No ne of the worker that I interviewed received receipts for the fees she paid to the agency, even those who asked. With personal loans in workers names and no documents proving that loan payments go to the agency, agencies can deny that the worker is paying illegal placement fees despite the obvious connection between the agencies and the loan companies. The fact that the Philippine agency can waive the workers loan after conciliation as further reveals this corrupt scheme. thereby, protecting agencies from allowing them to continue this practice withIn upholding the legitimacy and effectiveness of conciliation, the Philippine Consulate covers up the illegality of agencies actions.

Evaluation of the Conciliation Process

By the end of conciliation, which rangesing from 10 0-20 minutes to several hours, the worker chooses either to settle or be endorsed to the POEA in the Philippines to pursue a greater settlement. If endorsed, the worker may file a case with her local POEA office, which will conduct three more conciliation hearingsthree more . If her case is still not settled after these conciliations, the case is then heard by the National Labor Relations Council (NLRC), which has the power to suspend the agencys license should they find that the agency charged illegal placement fees. Based on my own quantitative analysis of hands-on conciliation, conducted at MFMW during the summer of 2011, the average Filipina worker receives 45.4% of the fees she paid to work at Hong Kong. Based on my own quanititative analysis of hands-on conciliation, conducted at MFMW during the summer of 2011, the average Filipina worker receives 4the fees she paid to work MFMWwho are specifically briefed on the conciliation processtechniques to present their case and are less prepared and receive lower settlements through conciliation. Nevertheless, few workers (15%) choose to pursue their cases further in the Philippines, where they can potentially receive larger settlements as well as having and have the licenses of their former recruitment agencies suspended. fact that fewpursue their cases in the Philippines This can be attributed to the agencies tactics in convincing workers to settle in Hong Kong through conciliation, as well as the facilitation of the conciliation process by the Philippine Consulate. My research highlights particular strengths and shortcomings of the conciliation process:

Hands-On Conciliation through the Philippine Consulate General

One method offered by the Philippine Consulate General (PCG) to alleviate illegally high fees is hands-on conciliation. This process allows workers to make monetary claims against agencies via the consulate, whether or not they have balance remaining on their loans. In these conciliations, a consulate official mediates a meeting between a worker and an agent from her recruitment agency. The PCG boasts that through conciliation, it has facilitated the return of millions of Hong Kong dollars to victims of illegal collection. However, MFMW expresses concern about the validity of the process. MFMW asserts that the handling of hands-on conciliation reinforces the current system of illegal fee-paying, diminishes the culpability of recruitment agencies, and places workers at a disadvantage during the negotiation process. Theya argue that conciliation gives victims the illusion that they are receiving sufficient reparations for the fees, when in reality the workers often get less than half of what they are owed and from which

This quick-fix conciliation scheme evades liability and dissuades workers from filing cases with the Philippine government, which could win them a larger portion of what they are owed.
they should have been protected in the first place. Likewise, the Philippine government does not protect workers pre-departure and belittles the systemic struggle with recruitment agencies by labeling it a labor issue. This quick-fix conciliation scheme evades liability and dissuades workers from filing cases with the Philippine government, which could win them a larger portion of what they are owed and has the potential to punish recruitment agencies. The system under which the conciliation process operates places workers at a disadvantage. . O, and is

Benefits
1. If the worker makes herself aware of agency tactics and fights for her settlement despite the, she may recover a considerable portion of the money she owes. For example, one MFMW case worker recalls a worker who was able to win PHP67,400 out of her PHP78,633 claim. Despite a few outstanding cases, however, large settlements are not common. 2. For workers determined to find another employer in Hong Kong, conciliation provides the quickest way to settle their case and move on. The worker, however, will inevitably lose money as she re-applies to work with an agency and again faces an enormous placement fee.

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Points for Improvement

1. A workers complaint is only entertained when her contract is terminated or pre-terminated. The consulate official that I interviewed stated that this is a security measure, because the worker may risk the termination of her contract if her employer or agency does not support her participation in the conciliation. On the other hand, the consulate states that the worker can participate in conciliation while employed, but she must ensuremake sure that her employer supports it. However, one worker I interviewed in this position faced difficulty in entering the conciliation process, explaining that the consulate requiresd her to solicit a letter of approval from her employer. In sum, the conciliation process is rather difficult and bureaucratic unless the workers contract is terminated or pre-terminated. 2. The consulate schedules the conciliation immediately before or on the day of the workers departure from Hong Kong. The consulate official blamed this on workers, claiming that they contacted the consulate only a couple of days before their departure for the Philippines. However, one caseworker said that the consulate maintains this practice even when the worker comes in well ahead of time (one or two weeks). If the worker is scheduled to leave at most a few days prior to her conciliation date, she is placed in a precarious, position during the negotiation process. She will not have the chance to ask for another conciliation date if the decision is unfavorable, and she will have little time to contemplate her decision and understand the consequences. This practice, while disadvantageous to the worker, because itquickly clear its schedule by ing. is advantageous to the agencies who pay lower settlements, as well as the consulate, who does not have to schedule further conciliation hearings with the same worker. The consulate does not allow caseworkers or family members to sit in the conciliation for guidance or moral support. The consulate reasons that the conciliation is solely between the worker and the agency. However, a caseworker is likely more familiar with the rights guaranteed to a migrant domestic worker in Hong Kong, and can therefore provide the worker with sound counsel and defense against agency tactics. In fact, each of the caseworkers I interviewed who joined a worker during conciliation before this policy was implemented believed that helped the sheher yed her decide to Konghe or she gain a helped win a larger settlement or convinced the worker to pursue the case with the POEA. sfair Meanwhile, the consulate allows agencies to send representatives in the place of agency officials. If the PCG maintains this policy on the basis that the conciliation should be between the worker and the agency, why does the PCG not require the agent who processed the worker

Key Facts
> An estimated 9-12.5 million Filipinos live or work abroad, 11% of the total population as of 2010. > There are more than 140,000 foreign domestic workers from the Philippines living in Hong Kong, and as many as 99% of these migrant workers are women. > Hong Kong work visas require some higher education, and in many cases educated Filipina women work as maids in Hong Kong for higher salaries than they could make pursuing professions in the Philippines.
to attend in person? The consulate may proceed through the conciliation too quickly, such that the worker may not fully understand the conditions to which she is agreeing. Upon signing the settlement agreement at the end of the conciliation, the worker waives any right to pursue further settlement. From my own observations in the conciliation waiting room, many workers become very emotional during the conciliation hearing. Their emotional state makes it even harder for them to fully comprehend all of the terms of the agreement during their hearing. 3. The conciliator allows the agent/agency representative to mislead the worker during conciliation. The conciliator does not correct the agent or representative when he/she gives the worker false information and sometimes encourages the worker herself to agree with the agent or representative. One caseworker recalled an incident where the conciliator sided with the agency, saying, Yes, come on. Dont ask for too much, youve already had the chance to earn that money by working. The worker, however, should not have been forced to pay the fees in the first place and is entitled to regardless of the amountsettlement regardless of what she has earned through labor. Such actions on the part of the conciliator perpetuate the agencies systemic exploitation of Filipina migrant domestic workers in Hong Kong. 4. The consulate allows and even advises the worker to directly settle claims with the agency. If the worker directly negotiates her settlement with the agency rather than participating in conciliation, she is placed in an even more unstable position to assert her rights. She may be forced to sign documents stating that she has received a full settlement (even

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though she has not) or that she will no longer pursue further legal action, etc. Although the consulate official stated that she strongly insists that workers participate in conciliation rather than confronting the agency in person, both caseworkers and domestic workers attested to the contrary. One worker spoke with her agent on the phone while at the consulate. When the agent suggested direct negotiations, the consulate staff agreed. 5. The conciliator discourages workers from filing cases in the Philippines. In the case of almost all domestic workers I interviewed, the conciliator encouraged the worker to settle through conciliation with what she could get from the in Hong Kong, because pursuing the because the to file a case in the Philippines would be lengthy and costlycostly, time-consuming, and limit opportunities for further employment.; also, she might not find a job when she goes backWhile these statements are often true, they ignore the potential for receiving a higher settlement or the opportunity to suspend the agencys license through judicial action in the Philippines. Conciliators have also falsely claimed that the worker cannot pursue the case in the Philippines if she is not there in person. This would effectively prevent her from supporting her family by working abroad. However, workers can file for power of attorney so that someone can represent them in the Philippines. Conciliators often side with the agencies and employ unfair tactics during the conciliation hearing. The conciliator may coax the worker into accepting the agencys offer. In one instance showed a closeness the conciliator, as per the request of the Philippine employment agent on the phone, kicked out an agency representative that surprisingly sided with the worker to rejectdemanding a higher settlement. In another case, the conciliation hearing was postponed when the agency representative did not show up, apparently with no consequence. Meanwhile, one contrarilyworker who was late to her meeting was scolded by the conciliator. worker should have beenthe conciliatorsThe caseworkers suggested that the consulate and the agency do this because they are working together becausefor they share a vested interest in perpetuating the current cycle of migrant workers debt. Because agencies pay the government for licenses, the government also profits from the sustained growth of the industry. Furthermore, agencies play an integral role in the governments continuation of the Labor Export Program (LEP), on which the Philippine economy has become dependent for remittances. Perhaps motivated by these common interests, agencies are granted protection from further government regulation. 6. The settlement agreement, also known as the Affidavit of Desistance, Waiver and Release and Quit Claim, shifts blame from the agency and protects it from further litigation. This settlement agreement states: That after carefully evaluating the facts and the circumstances surrounding the filing of complaint/case, I have come to realize that filing thereof was a result of plain and simple misunderstanding and misapprehension of facts between me and [agency] or its officers, directors. Previous versions of the settlement agreement refer to the settlement amount as financial assistance from the agency. Such statements belittle the worker and takeshift blame from the agency, even making the agency seem like itssuggesting that the agency doing the worker a favor.

Conclusion
This research does not represent an exhaustive list of all tactics adopted by agencies during the conciliation, nor all of the strengths and weaknesses of the process. All parties ultimately improvise during the hands-on conciliation and may veer from aforementioned patterns. Nevertheless, the consulate, pro-migrant organizations, the public, and especially workers themselves all have a role in asserting the rights and welfare of migrant workers in light of an unjust conciliation process. The conditions of Filipino migrant workers in Hong Kong and throughout the world are fundamentally tied to the Philippines current economic environment and its emphasis on the export of human labor. The consulate official I interviewed stated that one of the purposes of the hands-on conciliation is to unclog the system of workers making claims against agencies and corporations. But the system can never truly be unclogged if the Philippine government continues its current policies of debt servicing, dependence on foreign economies, and labor export. Filipino workers both inside and outside of the Philippines must fight for fundamental changes that value workers and fosters consulates that are truly for the Filipino/ as abroad.

ABOUT THE AUTHOR

MICHAEL TAYAG is currently a senior at Stanford majoring in Comparative Studies in Race and Ethnicity. He migrated from the Philippines when he was six-years-old. Heinterned at the Hong Kong-based Mission for Migrant workers for seven weeks in the summer of 2011. He conducted community-based research on the conditions of Filipina migrant domestic workers in the hopes that his findings can help pro-migrant organizations advance their advocacy work.