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Appeal court upholds live-in policy ruling for FDHs

Posted on 22 September 2020 No comments

By Daisy CL Mandap

 

Bed in kitchen: This is what live-out advocates want stopped

The Court of Appeal has rejected an application to overturn the lower court’s decision upholding the legality of the Hong Kong government’s live-in policy for foreign domestic helpers.

Filipina DH Nancy A. Lubiano filed the appeal against Court of First Instance Judge Anderson Chow’s decision in February 2018 dismissing her application for a judicial review of the policy which she said was unlawful and discriminatory. 

For the appeal, her counsel narrowed down the argument to claiming that forcing FDHs to live with their employers violated their right to a rest day and limited work hours as provided under art 7 of the International Covenant on Economic, Social and Cultural Rights.

But in its decision handed down Monday, Sept 20, the appeal court said that FDHs cannot claim such rights as they do not even have the right to enter and remain in Hong Kong.

Further, the court agreed with Judge Chow that the risk of abuse is not heightened by the worker having to live with her employer. Their close proximity while inside the house could expose the worker to ill-treatment while at work, regardless of whether he/she also lives in the employer’s residence. 

The decision was concurred in by Vice President Johnson Lam and Justices Aarif Barma and Au Hing-cheung.

Solicitors for the appellant, Daly & Associates called the judgment disappointing saying it was a “judicial stamp determining that foreign domestic workers are not worthy of the basic rights afforded to others who live and work in Hong Kong lawfully.”

The statement further said that the live-in policy was symptomatic of the “wider systemic discrimination faced by FDWs in Hong Kong”. Given that laws meant to protect them are hardly enforced, it was up to the courts to set this right.

The government, however, applauded the decision, saying the decision underlined the long-established government policy that locals should be given priority in employment and foreign workers should only be allowed in if there are manpower shortages.

The statement said that before coming to Hong Kong, FDHs sign an agreement saying they can only live with their employers.

“In other words, FDHs are fully aware of the "live-in requirement" before signing the contract and they are admitted to Hong Kong on such basis,” said the statement.

It further said that FDHs whose rights are violated could always turn to the Labour and Immigration Departments for help and redress.

Government has always said that while the policy had been part of the FDW importation scheme from the early 1980s, it was only included in their standard employment contract in April 2003. Before this, FDWs and their employers could agree on whether they wanted a live-in arrangement or not.

Since its implementation, migrant support organizations have been trying to get the policy withdrawn, alleging it has left FDWs vulnerable to abuse. But it took Lubiano’s landmark challenge to get the issue heard in court.

During the appeal hearing on Mar 17 and 18, Lubiano’s counsel Paul Hsieh, SC, said FDHs should be allowed to live outside of their employers’ house to ensure they get a full rest on their only day off each week.

Hsieh says infringing on a right “does not only refer to the actual taking away, but also to any act that heightens the risk of that right being taken away.”

He cited two studies made by NGOs Justice Center and the Mission for Migrant Workers that showed most FDWs are made to work, before and after taking their day off. 

In another survey conducted by three migrant support groups and published on Mar 16, it was shown that the coronavirus outbreak had led to new kinds of contract violations by employers. About 40% (160,000) of those surveyed said they had not been out of their employer’s home for at least a month, with only half saying this was with their consent.



Many OFWs camp out on their days off to get some breathing space

But Hsieh was quick to point out that he was not advocating that all FDWs be allowed to live out as that would be unrealistic, but to return to the previous practice of making a live-in arrangement optional.

Benjamin Yu, SC, who appeared for the respondent Director of Immigration, said there was no need to refer to international laws when it came to protecting FDH rights.

The Employment Ordinance already clearly states that every FDH is entitled to a rest day per week, and there are channels for redress already set up if this is not followed.

In his ruling, Judge Chow was more forthright, saying the live-in arrangement was something that the FDWs could accept or not even before they come to Hong Kong.

“If, prior to coming to Hong Kong, he/she considers the Live-In Requirement to amount to an unacceptable invasion of his/her personal or private rights, he/she can of course choose to remain in his/her home country, or work in some other countries which do not have such requirement,” said Chow in his judgment.

Then, after coming to Hong Kong, the FDW finds the policy unacceptable, he or she can still terminate the employment contract by giving a month’s notice, said the judge.

Earlier stories here: 

https://www.sunwebhk.com/2020/03/live-in-policy-put-migrant-workers.html

https://www.sunwebhk.com/2018/03/ngo-blasts-court-for-rejecting_9.html


4 out of 6 new Covid-19 cases are Filipina DHs

Posted on 21 September 2020 No comments

By Vir B. Lumicao

The elderly helper's case is untraceable (file photo)

Four Filipina domestic helpers - three of them new arrivals, and the fourth, a 60-year-old who works for a local family - were among six new coronavirus cases confirmed today, Sept 21, by Hong Kong health officials.

The two other cases were a 38-year-old male returnee from Togo, Benin; and a 45-year-old local man in Tuen Mun who was linked to a previous infection.

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Today’s new cases brought to 5,039 the total number of Covid-19 infections since late January this year.

Dr Chuang Shuk-kwan of the Centre for Health Protection said the elderly helper lives with her employers’ family in Ching Hoi House, Ting Ching Estate in Tin Shui Wai.


During an inquiry, the maid said that during weekends, she stayed in a room in Ma Tin Pok, Yuen Long, and shared a bathroom with other people. But police couldn’t find the address.

Chuang said the police distributed photos of the maid just in case somebody knows her.

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The woman also disclosed that she went to a Tin Hau Bazaar hair salon on Sept 16 before going to the Chung Fu public market. The hairdresser will be sent for testing and quarantine.

Chuang said in the past few days, there were two confirmed cases who had been to Chung Fu market. She said on the safe side, specimen bottles would be given to stall owners and vendors there.

A 10th FDH who flew in aboard a HK Air flight on Sept 9 tests positive 


Also included in today’s new cases is another helper who flew in aboard Hong Kong Airlines Flight HH782 on Sept 9, the 10th person from that flight to test positive for Covid-19.

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The 31-year-old woman was among 13 Filipina DHs who stayed in an employment agency hostel hostel in Manila before they traveled together to Hong Kong

The third Filipina, a 55-year-old, also tested positive on her second test. She flew into Hong Kong on Sept 10 via Cathay flight CX906.

The fourth, who is 42, arrived on Sept 19 on flight CX 966, and was taken directly to hospital after testing positive at the airport.

Dr Lau Ka-hin, chief manager of the Hospital Authority, said that as of 9am today, five more confirmed patients were discharged from hospital, bringing the total number of recoveries to 4,717.

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No patient passed away in the past 24 hours, so the death toll remains at 102.

A total of 185 confirmed patients are in 17 public hospitals; 13 of them are critical, 10 are serious, and the remaining 162 are in stable condition.

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HK Immigration says Filipina DH 'removed' because employer backed out

Posted on No comments

By Vir B. Lumicao

The hotel in Ortigas where Deno is spending the first few days of her quarantine

A Filipina domestic helper was sent back to the Philippines last Saturday after her prospective employer cancelled her work contract on learning she tested positive for Covid-19 on arrival, the Hong Kong Immigration Department said today, Sept 21.

This was the reason why Ermalyn Deno, 31, was issued with a removal order as soon as she was discharged from Pamela Youde Nethersole Eastern Hospital on Sept 19, after a week of treatment.

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An Immigration spokeswoman clarified that Deno’s case did not indicate a policy shift in treating incoming migrant workers who test positive for coronavirus at the airport.

In this case, Immigration reportedly asked the employer after Deno was treated at Eastern Hospital if she still wanted to employ the worker and the employer said she had changed her mind, the spokeswoman said.

 

In a separate statement, an Immigration spokesman said in response to an emailed query that Deno was not deported, but was “removed” from Hong Kong because she had no right to remain here.

“The reason for her removal was that her employer decided not to continue with her contract,” the spokesman said.


The spokeswoman said a foreigner is deported if he or she has been convicted of a crime in Hong Kong. On the other hand, she said removal is the process of sending away someone who has no right to remain in Hong Kong.

Both spokespersons asserted the Filipina was not covered by the 14-day extension of stay given to terminated foreign helpers as a matter of policy.


The spokeswoman said the grace period is given to FDHs to pack their belongings before they go home, and not to look for new employers.

She added that terminated workers must return to their home countries and, from there, apply for new employers and return to Hong Kong once they are issued new work visas.

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The spokesman said Deno was not given an entry visa to Hong Kong but was only taken to the hospital for treatment because she tested positive for Covid-19 upon her arrival.


Deno's visa was not stamped as 'completed' as if she never entered Hong Kong

 Whatever the action against Deno is called, it has surprised many, including those in the employment agency sector.

 Thomas Chan, chair of the Hong Kong Union of Employment Agencies said it was “strange” to hear about the case.

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“This is a case deserving the attention of Polo (Philippine Overseas Labor Office) and the employment sectors,” Chan said. “(It’s) really a new approach.

Meanwhile, Deno, who spent two days quarantined in Pasig City, said she was released today after receiving a negative swab test result this morning from the Red Cross.

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She said she would stay for a few days in Metro Manila to visit the agency that deployed her to Hong Kong and coordinate with the local government unit in Puerto Princesa City, Palawan, regarding safety protocols for her return home.

Despite testing negative in three tests prior to her discharge in Hong Kong, she still has to complete the 14-day quarantine required of all new arrivals in the Philippines.

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UPDATED: Filipina in ICU after near-drowning incident in swimming pool

Posted on No comments

By Daisy CL Mandap

Onera is an avid swimmer, so her family is puzzled why she was found drowning in the pool

A Filipina domestic worker who is known to be a strong swimmer is in intensive care at United Christian Hospital after being rescued from drowning in the pool at Laguna City in Lam Tin, Kwun Tong yesterday afternoon, Sept 20.

The Filipina has been identified as Adrelyn P. Onera, 28, from Dingle, Iloilo.

A police spokeswoman said the case was classified as drowning. No suspicious circumstances were found.

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According to the spokeswoman, the Filipina was rescued by lifeguards at the pool and was rushed to hospital in an unconscious state.

Her family members and friends have been told she is in critical condition. A sibling said after conferring with a doctor in Hong Kong that Adrelyn is now on life support.

Her townmate and fellow FDW Merly T. Bunda told The SUN that Onera’s mother Marilyn had relayed information to her from Iloilo. The Onera family has reportedly been in touch with the Consulate on the case.

Reports reaching Marilyn and her family indicated there were no signs of a concussion or fractures in her daughter’s body.

 


This appears to contradict Facebook accounts by some of Adrelyn’s friends that the patient slipped in the swimming pool and hit her head on the ground.

Videos uploaded by Adrelyn herself on Facebook show she’s a competent swimmer, which makes her being found unconscious in the pool puzzling.

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Bunda said the Onera family was told Adrelyn had spent Sunday morning resting in her room and eating lunch as it was raining hard outside.

She went out briefly in the afternoon, and on returning home, reportedly asked permission to go to their estate’s clubhouse to swim, and her employer lent her an access card to the facility.

The next thing they knew, she was reported to have been rescued from near-drowning in the pool.

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Bunda said the Onera family told her that Adrelyn, who is a single mother to a boy who’s turning 12 this month, does not suffer from any ailment, except for an occasional bout with sinusitis.

She has been with her present employer for the past eight months, although she reportedly started working in Hong Kong in 2015.

 

Her family has been assured by Consul General Raly Tejada that the Overseas Workers Welfare Administration is ready to assist them if they need it.

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Newly arrived Filipina DH deported after recovering from Covid-19

Posted on No comments

By Vir B. Lumicao

The deported Filipina says she had a negative test result before departing Manila (file) 

Has there been a policy shift in the way Hong Kong Immigration is treating newly arrived foreign domestic helpers who test positive at the airport?

This is the question being asked by many in the community after a Filipina domestic worker who was sent to hospital after being found positive for Covid-19 on arrival in Hong Kong on Sept 12 was deported exactly a week later.

It is the first reported case of an infected Filipino worker being deported immediately back to Manila after hospital treatment.

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Asked if he knew about the case, Consul General Raly Tejada said the Consulate was not informed.

Contacted yesterday, Sept 20, in Manila, Ermelyn Deño, 31, said she was still perplexed and feeling down after her ordeal.

She said she was in a hotel room in Ortigas, where she will be under quarantine until she is picked up by a government vehicle and taken to a connecting ride to her hometown in Puerto Princesa, Palawan.

 

Noong (Sept) 12 po ako pumunta diyan, sir, tapos kahapon na-discharge ako sa hospital, pinaderetso na ako dito,” said Deño, married and a mother of three young children.

(I went there on Sept. 12, then yesterday I was discharged from hospital, and I was immediately told to go home straight).

She said she arrived at 10am that day in Hong Kong via Philippine Airlines flight PR300 for what would have been her first job abroad.


She said she did not know why Hong Kong Immigration kept her passport and luggage  while she was taken to Pamela Youde Nethersole Eastern Hospital in Chai Wan in an ambulance after her swab test at the airport.

Upon her arrival, she had a dry throat and sporadic coughing, she said, but did not know where she could have gotten the coronavirus.

But she was confident when she left Manila because her certificate from the Lung Center of the Philippines stated she was swab-tested on Sept 10 and confirmed negative a day after.

Deno says she was tested at the Lung Center in Quezon City

At Hong Kong aiport, Deño said a female immigration officer interviewed her but she could barely understand what she was asked.

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Tinanong po non sa akin kung saan ako galing at saan ako nakatira dito, tapos kung may nakasalamuha akong may ubo, sipon, nilalagnat, mga sintomas ng Covid,” she said, adding she was also asked if she had travel companions.

(I was asked then where I had come from, where I live in the Philippines, and if I had mingled with people who had cough, runny nose, fever, all symptoms of Covid)

Afterwards, the officer gave her a recognizance form to sign. The document is an undertaking by a person suspected of having committed a violation, promising to submit himself/herself to authorities at a specified time and place.

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The Filipina said she did not know what it was for but took her copy of the document and showed it to her contact person at Sunlight Employment, her Hong Kong agency. She said the agency staff did not know what it meant, either. 

A copy she scanned for The SUN showed she was being instructed on Sept 12 to report to the duty officer at the airport immediately after her discharge.

During her hospital confinement, she said she was able to chat with her would-be employer, then got no more reply to her last message. It was only with the agency that the employer communicated, she said.

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Deño said she was surprised when at past 5pm on Sept 18, the agency representative contacted her and told her she was flying back to Manila the next day.

No'ng tinanong ko po si agent tungkol sa amo ko, sabi wala pa naman daw sinabi si amo na back out na. Kaya nabigla ako nang tumawag sila, back-out na ko at pinapauwi na ako ng Immigration. May ticket na kaagad ako,” she said.

(When I initially talked to my agent, I was told my employer had not said anything about backing out of our contract. So I was surprised when I got a call saying my employer had backed out and Immigration wanted me to go home. I was immediately given an air ticket).

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She said she was assured by the agency that she would be given financial aid.

Deno said the ordeal was a big blow as she had to give up her nine-year-old job as hotel housekeeping staff in Puerto Princesa to come to Hong Kong. She said she had to borrow money to pay Php36,000 to Ascend International Services, the agency in Manila, for various fees.

She said she won’t have a job to return to because Palawan’s tourism industry has been knocked down by Covid-19. Luckily, she said her husband, a hotel security guard, still has a job so the family has money for daily expenses.

But she worries about the effects on her three children and her youngest sibling whom she is sending to school.

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HK suspends flights from India anew as 19 imported cases reported

Posted on No comments

By The SUN

It's the second time in 2 months that Air India flights to HK have been suspended

Two airlines that fly from India to Hong Kong have reportedly been suspended for two weeks as eight new arrivals from the South Asian country, aged 8 to 63, were among 19 imported cases of Covid-19 reported today, Sept 20.

The others included three new arrivals from the Philippines, seven from Nepal, and one from Sweden, according to a press release issued by health authorities.

 

The 23 new cases, the highest in nearly a month, took Hong Kong’s total tally to 5,032, with 103 related deaths.

According to various media reports, Air India and Cathay Dragon Flights from Kuala Lumpur in Malaysia have been banned from flying into Hong Kong from Sunday until Oct. 3.


This follows a jump in infections among new arrivals from India, some of whom took the Cathay Dragon flights that transit through Kuala Lumpur.

India, along with eight other countries including the Philippines and Indonesia where most foreign domestic workers in Hong Kong come from, were categorized as high risk in late July. This meant that passengers from these countries were required to present a negative result for a nucleic acid test done within 72 hours before their scheduled flight to Hong Kong.

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On Sept 18, five passengers on the Cathay Dragon flight tested positive for Covid-19 on arrival at Hong Kong airport. On the same day, six passengers on an Air India flight that came direct from New Delhi were also found infected on arrival.

This is the second time that Air India flights to Hong Kong have been suspended in as many months. On Aug 14, the airline was first suspended after 11 of its passengers from India tested positive on arrival in Hong Kong. Several others from the same flight were subsequently found infected while in quarantine.

Three arrivals from Manila were also among the 19 imported cases

Meanwhile, the new arrivals from the Philippines who tested positive comprise two women, aged 36 and 40; and a man, aged 29.

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This is the second day in a row that new arrivals from the Philippines, who should have also presented a negative test result prior to boarding, were found infected at the airport.

The biggest number of infected passengers to arrive from Manila on the same flight were the five domestic helpers who flew in aboard Hong Kong Airlines flight on Sept. 9. Four others from the same flight tested positive a few days later.

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Today’s local cases were all linked to previous infections, although all did not show symptoms. Two were traced to an infected man who worked at the Transport City building in Tai Wai, while the two others were family members of two women who earlier tested positive.

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