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Live-in policy put migrant workers’ right to rest day at risk, appeal court told

18 March 2020

By Daisy CL Mandap

Migrant workers use their only rest day in the week to send money home and catch up with friends

Foreign domestic workers should be allowed to live outside their employers’ homes to ensure they are not deprived of their right to one rest day week, the Court of Appeal was told on Tuesday, Mar 17.

This was the focus of the appeal against a lower court’s decision in 2018 that rejected a landmark challenge by Filipina domestic worker Nancy A. Lubiano to the government’s live-in policy for foreign domestic workers.

Appearing for the appellant, Paul Hsieh, SC, said the Hong Kong government is obliged to ensure that the FDW’s right to a rest days is protected, and this cannot be done if the worker is forced to live with her employer as this heightened the risk of her being made to work while she’s supposed to be resting.
The deprivation of 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,” said Hsieh.

In such a case, a penalty is not enough, said Hsieh. “You have to be away from the risk.”

He cited two studies, one from the Justice Center, and another from the Mission for Migrant Workers, that showed most FDWs are made to work, before and after taking their day off. In the Justice Centre survey, 66% said they felt compelled to oblige even if they knew it wasn’t right.
The studies, he said, “reinforce the idea that if you live in, you will be exploited by a mean-spirited employer.”

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.

Migrant support organizations have long tried to get the policy withdrawn, alleging it has left FDWs vulnerable to abuse.

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A survey released only on Monday, Mar 16, by three of the biggest migrant workers’ organizations in Hong Kong, showed the outbreak of the coronavirus has 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. Up to 14% (65,000) said they had not been furnished protective materials like face masks and gloves while being made to do extra cleaning using harmful substances.

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But Hsieh was quick to mention that he wasn’t pushing for all FDWs to live out because that would be unrealistic, but for a return to the pre-2003 practice of letting the worker and the employer agree on their living arrangements.

At that time, he said a hearing of the Legislative Council’s manpower power showed there were only around 100 FDWs hired on live-out arrangements, so it was not likely a return to the old system would result in abuse.

Benjamin Yu, SC, who appeared for the respondent Director of Immigration, countered that the law is clear: that the FDH is entitled to a rest day, and the employer is not entitled to make a request that the worker do chores on that day.

Under the law and under their contract, the FDH is also entitled to choose where she wants to stay on her rest day. However, living out on the day she’s supposed to be working cannot be allowed as the job contract clearly states that the worker must reside with her employer.

To this, CA Vice President Johnson Lam asked whether it was possible for both parties to agree that the worker stay in a boarding house or hostel during her rest day, instead of striking down the live-in policy in its entirety.

Hsieh said the applicant’s position is that there should be a blanket lifting of the live-in policy. He said what they’re seeking is a declaration that the live-in arrangement is contrary to law.

To support this argument, he cited art 7 of the International Covenant on Economic, Social and Cultural Rights which says that signatory states shall recognize the right of everyone “to the enjoyment of just and favourable conditions of work which ensure, in particular…safe and healthy working conditions..(and) rest, leisure and reasonable limitation of working hours.”

Shieh says this provision is only partially adopted by Hong Kong through its employment laws and its mini-constitution, the Basic Law.

But by signing the convention, he argued that Hong Kong should have made a “conscious act” to implement it in its territory.

Government counsel, on the other hand, argues that local laws are adequate to ensure the FDW’s right to rest day is complied with.

The hearing of the appeal continues before VP Lam and Justices Aarif Barma and Au Hing-cheung. 

In the original application she started way back in 2016,  Lubiano had argued, also through Shieh, that the live-in policy was discriminatory, and constituted “servitude” or forced labour.

No information was disclosed in court as to Lubiano’s personal background at her request, except for the fact that she’s a Filipino domestic worker.

Dismissing the application two years later, Judge Anderson Chow said forced labour is not defined in Hong Kong’s Bill of Rights, while there was no discrimination in the way FDHs were being treated compared with other imported workers.

The judge also brushed aside the argument that the live-in requirement heightened the risk of ill-treatment of  FDWs by their employers.

This crawl-in structure on a balcony has been declared 'suitable accommodation' for an FDW by a magistrate

 “While the fact that the FDH is living in the employer’s residence would mean that there may be more opportunities for the employer to apply ill-treatment on FDH if the employer is minded to do so, I am by no means satisfied that the risk of ill-treatment is unacceptably or significantly increased by the fact that the FDH is living in the employer’s residence,” said Chow.

Lubiano had presented four arguments to support her challenge: (1) the Immigration Director did not have legal authority to impose the live-in policy; (2) the policy heightened the risk of violating fundamental rights, and was therefore, unconstitutional; (3) the policy discriminated against migrant domestic workers; and (4) the implementation of the policy without general exception was irrational and unlawful.

For the appeal, Lubiano and her counsel decided to just focus on the argument that the live-in policy is illegal as it put to risk her right to enjoy a full rest day each week.
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