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Appeal court upholds live-in policy ruling for FDHs

22 September 2020

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.

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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.

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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

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