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What FDWs can expect when expecting

11 September 2017

By PATHFINDERS

(Starting this issue, we will be publishing a quarterly column from Pathfinders, a registered charity that helps migrant workers who have become pregnant or have given birth to children in Hong Kong, including those who have overstayed their visas. Pathfinders helps pregnant migrant workers to access professional services and assistance and to make informed decisions about their lives and the well-being of their children. The group offers social care, shelter and supplies, supplies, access to healthcare, documentation & legal assistance, education and home country return support – Ed)

Like every expectant mother, Susan (not her real name) was excited yet nervous when she found out she was pregnant.  A Filipino foreign domestic worker (FDW), she has been working in Hong Kong for almost 9 years and for the same employer for the last 4 years.

Susan’s employer was supportive and took time to discuss with her the best way to handle the pregnancy.  Susan knew FDWs often have their contracts terminated when they become pregnant and was relieved that she didn’t have to wage a legal battle to keep her job.

It was only after the birth of her baby that Susan realised there were many more challenges and obstacles ahead -- obstacles that would mean her spending long hours apart from her newborn during the critical first weeks of the child’s life.

Recent figures show that almost 1 in 3 families with children in Hong Kong hire a FDW. It’s thus surprising that many employers and FDWs do not know that female FDWs are protected by the same laws which protect every working woman in Hong Kong. Hong Kong’s Employment Ordinance (EO) stipulates that a pregnant, female employee is entitled to 10-weeks statutory Maternity Leave (2-4 weeks before and 6-8 weeks after her due date, respectively). She cannot be dismissed by her employer, unless for other reasons justifying summary dismissal. The Sex Discrimination Ordinance (“SDO”) further protects a pregnant employee from being discriminated against because of her pregnancy.

However, the Ordinances and government immigration and labour department policy lack clarification about the specific employment and visa regulations relating to pregnant FDWs.  As a result, it can be challenging for an FDW to assert her maternity rights and there are unnecessary pressures and conflicts for both employee and employer.

Susan’s employer lives in a 400 sqf apartment in a Tin Wai public housing estate with his brother and parents. Space is limited and Susan sleeps in the living room which she has to share with the employer’s father.  

During her statutory 10-week maternity leave, Susan and her employer still have to comply with the “live-in” requirement yet there is no obligation for the employer to house the new baby. Susan’s partner and baby live in Kam Tin, at the other end of the New Territories. It takes three hours to make the round trip between the two homes. To avoid disturbing the household she can only be away from her employer’s apartment between 8:30pm and 7:30am the next day to feed and bond with her new baby.

The importance of bonding in the early weeks of a child’s life and the health benefits of breastfeeding are widely acknowledged. But Susan is only able to spend around 10 hours a day with her new baby and is unable to breastfeed at night and in the early morning. In addition, the lack of space and privacy at her employer’s flat means that expressing and storing breast milk at night is a real challenge. Like any new mother, Susan is tired, but in her case it is made worse by her long daily commute. Yet since she sleeps in her employer’s living room it is impossible for her to get proper rest until everyone has gone to bed.

As a result of all these factors Susan and her baby are deprived of crucial time together. Her baby is unable to get the full benefit of breastfeeding, Susan is stressed and exhausted, and the employer is inconvenienced and worried about who will care for his elderly parents.  There is simply not enough room in the apartment to employ temporary help.

A few weeks into her maternity leave Susan felt overwhelmed with emotions and had many questions. “Can I not be exempted from the “live-in” requirement during my maternity leave? Who can I turn to for help and advice as a new mom? What should all FDWs expect after giving  birth?  How can I and my employer best plan for a healthy, safe and happy pregnancy, and maternity leave for all concerned?”

In order to qualify for maternity rights, an FDW must first notify her employer of her pregnancy with a doctor’s certificate, and state her intention to take maternity leave. After that, she and her employer should discuss the maternity leave arrangements. If the FDW wishes to return home to give birth, who shall bear the cost of airfare? How can she receive her salary when she is out of the country? Maternity leave can only begin 4 weeks before the expected due date. Would the FDW fall foul of an airline’s safety requirement if she flew home 36 weeks into her pregnancy?

If the FDW decides to stay in Hong Kong, how can she juggle caring for her baby and still comply with the live-in requirement? For Susan, this has been her biggest challenge. PathFinders, an NGO that supports pregnant migrant mothers in Hong Kong, has helped a number of its clients to seek exemption from the live-in requirement during maternity leave from the Labour Department. However, none of the cases have been successful thus far.

Maternity rights are a complex area. To avoid unnecessary disputes and possible legal violations, both FDWs and employers need to clearly understand their rights and obligations, and know about the grey areas.

There are a number of NGOs in Hong Kong that FDWs may reach out to for assistance, aside from government agencies and employment agencies. PathFinders is a registered charity in Hong Kong which supports pregnant migrant mothers and their Hong Kong-born babies. For inquiries or assistance, you may visit PathFinders’ website at www.pathfinders.org.hk or contact PathFinders via its hotline, FaceBook page or email.

Here are some useful contact information:

PathFinders’ client hotline:  51904886 (9am to 9pm); info@pathfinders.org.hk; www.facebook.com/pathfindershk/

Labour Department’s hot-line: 2717 1771 (24-hour); enquiry@labour.gov.hk

Immigration Department’s general hotline: 2824 6111 (24-hour); enquiry@immd.gov. hk

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