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Tribunal rejects claim for compensation by DH who testified via video link

Posted on 23 September 2019 No comments
By Vir B. Lumicao

The landmark Tribunal hearing was held in a technology courtroom in West Kowloon court

A former domestic helper who won a landmark approval to testify via video link from the Philippines failed in her bid to sue her employer for compensation of around $85,000 after the labor tribunal found that she was sacked for cause.

Presiding Officer W.Y. Ho, sitting as a trial judge, said in her judgment on Sept 23 that she was convinced that Joenalyn Mallorca was sacked for sexually abusing her employer’s daughter who was only seven years old at the time.

Ho gave her verdict after a three-day trial last week in which both Mallorca and her former employer, Mrs Ng, gave evidence via video link in West Kowloon Court, outfitted as a technology court.
The employer had accused Mallorca of inserting her finger in the genitals of her daughter on at least two occasions while washing the girl, causing injury and inflammation. Ng also accused Mallorca of adding a substance to the shampoo that irritated the girl’s scalp.

Ho said she believed Ng’s claim that the girl’s pubic area was inflamed and that she had a painful urination due to the maid’s acts and was consistent with the girl’s complaints.

This was the reason for Mallorca’s summary dismissal, the judge ruled.
The judge also said the matter involving child abuse and neglect was outside of the labor issues at hand but she planned to refer the matter to relevant authorities, suggesting a police investigation.

Mallorca had sought compensation after Ng terminated her work contract on Sept 22, 2016, just three months after she started working for the family. The helper alleged the employer had slapped and then dismissed her for no reason.

Mallorca initially filed only a claim for unpaid wages, a month’s salary in lieu of notice and return air fare against Ng at the Tribunal. Ng, who agreed to pay her arrears in wages totaling $1,824.37 and plane fare of $1,300.
The Filipina returned home in December 2016 to look after her mother, who was sick of lung cancer, and her two children without settling four other items totaling $8,707.33, including wages in lieu.

She apparently added a claim for compensation when her case went up for trial. According to Shiella Estrada, president of a labor union who was allowed to represent Mallorca in court, the total claim was around $85,000.

A second hearing was set for Feb 2, 2017, but Mallorca could not return because no one would take care of her mother, so, she authorized the NGO, Help for Helpers, to represent her.

Mallorca applied to give evidence via video link but Tribunal Presiding Officer David Chum dismissed her application on Mar 30, 2017, and struck off her claims against Ng without a trial.

With help from another NGO, Justice Without Borders, solicitors firm Dechert took Mallorca’s case to the High Court, which reversed Chum’s ruling and ordered the use of video link. High Court Justice Bebe Pui Ying Chu also ordered the Tribunal to restore Mallorca’s claims.

The maid was later allowed by the Tribunal to be represented in the trial by Estrada.

In Monday’s verdict, Judge Ho struck out Mallorca’s claim for one month’s wage in lieu of notice, a $300 claim for taxi fare from the Ninoy Aquino International Airport to her home in Laguna, and the rest of her claims, without stating their amount.

In all, Ho awarded only a total of $970 as Ng’s compensation to Mallorca. No order was made as to cost, as Ng did not apply for it.

The High Court’s decision to allow Mallorca to give evidence via video-conferencing was seen as setting a precedent for other migrant workers who have returned home to pursue cases against their former employers in Hong Kong.

While testimony via video link is used at the District Court and the High Court, Mallorca’s case was the first ever to be allowed in the Labour Tribunal.
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HK groups mark martial law anniversary with call to oust Duterte

Posted on 22 September 2019 No comments
by The SUN
 
The statement likens Duterte to Marcos but with far more powers

Filipino community groups and individuals led by church leaders marked the 47th anniversary of the declaration of martial law in the Philippines on Sept 21 with a call for the ouster of President Rodrigo Duterte.

The first united group to call for the president’s removal from office said that like Marcos, Duterte’s tyrannical rule “has wrought irreparable damage to our country and its democratic institutions.”

The statement accused Duterte of destroying the check and balance in government by dominating Congress, imprisoning a senator to sow terror, and causing the former Chief Justice to be removed on flimsy ground.

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Duterte is also said to have abetted the extrajudicial killings not just of suspected drug addicts and pushers, but also of human rights activists. Church leaders, on the other hand, have been publicly shamed by the president, along with their faith.

The government’s alleged corruption was another issue raised in the statement, which cited as an example the Php100 million “pork barrel” allocated for each member of Congress, along with the Php4.5billion set aside for the president as intelligence fund.
Duterte was also accused of being a “traitor” for not asserting the country’s right over the West Philippine Sea, despite winning an arbitral court ruling against China over the disputed shoals.

“And all along, ordinary Filipinos have been left to grapple with rising food prices, horrendous traffic, lack of jobs and job security, unmitigated killings, and a general sense of hopelessness and despair,” said the statement.
The group also hit out at the government for failing to protect OFWs against unscrupulous recruiters and discriminatory laws in their host countries, and subjecting them to more mandatory fees, such as for SSS and insurance.

“All these are happening, while the country’s officials who could make a difference look the other way, or continue paying homage to Duterte. This is martial law without the official pronouncement, but has proved far more damaging to our country, its institutions and its people,” said the statement.

The joint statement issued by Bayan Hong Kong and Macau was supported by several church leaders, including the Chaplain for Filipinos Fr Jay Flandez, and the Philippine Independent Church head, Fr. Dwight dela Torre. Pastors from the Intenational Methodist Church and the United Church of Christ in the Philippines also signed.

Signing in their individual capacity were several Filipino professionals and migrant rights advocates.

Apart from Bayan, the group signatories included three other alliances: United Filipinos in Hong Kong, Gabriela Hong Kong and Filipino Migrant Workers Association, as well as 28 smaller organizations.

The full statement is printed below:

HK JOINT STATEMENT AGAINST MARTIAL LAW AND TYRANNY

Marcos declared martial law on Sept 23, 1972, two days after he signed the infamous proclamation 1081


No to Martial Law! Oust Duterte now!

Today marks the 47th year since former dictator Ferdinand Marcos imposed martial law throughout the Philippines.

We, concerned Filipinos in Hong Kong, are alarmed that long after we regained our freedoms with the ouster of Marcos, another dictator with far more powers has emerged, and has wrought irreparable damage to our country and its democratic institutions.

Since President Rodrigo Duterte took power in June 2016, he has systematically destroyed all checks and balances in the country.

He took control of Congress by ensuring his party had a super-majority among its members, then had a senator long critical of his human rights record arrested and detained on flimsy ground, striking fear in the hearts of most of her colleagues.

Next, with help from corrupt justices in the Supreme Court, he had the Chief Justice removed on the lame excuse that she missed filing some of her statements of assets, liabilities and net worth, and replaced her in quick succession, with people totally beholden to him.

Duterte has also neutralized the military and the police by giving top perks to officers in the form of juicy posts in government and fat salaries.

In the meantime, the extrajudicial killings committed in the name of his fake campaign against drugs continue to mount, with official figures showing no less than 30,000 deaths occurring since he took over.

Human rights advocates critical of his government including journalists, lawyers, farmers and church people, have also become targets of political attacks and killings. There are now 266 victims of extra judicial killings among them, and more than 400, of frustrated killings.

Many of these human rights defenders are being tagged as terrorists and put under surveillance or on a watch list, before being arrested on trumped-up charges. Church people, on the other hand, are often publicly vilified by Duterte who calls them repugnant names, and heaps scorn on their faith and God.

Corruption has also gotten much worse than before, with his key allies in several branches of government – correctional services, tourism, public works, labor, just to name a few – being allowed to get away with pilfering tens of millions of public funds.

Pork barrel, long a source of corruption among lawmakers, is not only back, but has been increased to as much as Php100 million per congressman, virtually ensuring their total complicity and obedience to Duterte’s government.

Duterte himself stands to get a total of Php4.5 billion in security and intelligence funds, an amount that is not subject to scrutiny by any government entity, including the Commission on Audit.

But this is just the icing on his cake, as Duterte continues to be linked to highly anomalous transactions, mostly by way of suspicious loan agreements with his benefactors in China.

Let us also not forget the Php6.4billion worth of smuggled drugs traced to his eldest son, Paolo, and the hundreds of millions of pesos he was shown to have deposited into a bank account during his campaign for the presidency.

His abject obedience to China has also led him to commit the traitorous act of giving up our hard-won victory in claiming the West Philippine Sea.

And all along, ordinary Filipinos have been left to grapple with rising food prices, horrendous traffic, lack of jobs and job security, unmitigated killings, and a general sense of hopelessness and despair.

Worse off are the millions of Filipinos forced to work overseas to help make ends meet for their families. Not content with leaving them unprotected against greedy recruiters and discriminatory laws in their host countries, our OFWs are being subjected to more state exactions, including mandatory SSS contributions and insurance.

All these are happening, while the country’s officials who could make a difference look the other way, or continue paying homage to Duterte. This is martial law without the official pronouncement, but has proved far more damaging to our country, its institutions and its people.

As we mark yet another anniversary of that grim event in our history when Marcos declared martial law in our country, we call on everyone to stop Duterte from dragging us back to those dark days of fear and despair.

Let us all join hands in ending his murderous and corrupt regime.

Oust Duterte now!


Signed:
ORGANIZATIONS
1.    Abra Migrant Workers Welfare Association
2.    Association of Concerned Filipinos
3.    Cuyapo OFW Association Hong Kong
4.    Filipino Friends in Hong Kong
5.    Filipino Lesbians Organization
6.    Filipino Migrant Domestic Worke
7.    Filipino Migrants Association (FMA)
8.    Filipino Women Migrant Aol
9.    Friends of Bethune House
10.  Gabriela Hong Kong Bank
11.  Likha Filipino Migrants Cultural Organization
12.  Luzviminda Migrante
13.  Migrante NaguilianMigrante Pier
14.  Migrante Shatin
15.  Migrante Tamar
16.  Migrante Tsing Yi
17.  Migrante Tsuen Wan
18.  Migrante Yuen Long
19.  Migranteng Artista ng Bayan
20.  Mission Volunteers (MOVERS)
21.  Organic Cultural and Environmental Organization
22.  Philippine Independent Church Choir
23.  Pinatud A Saleng Ti Umili
24.  Pangasinan Organization for Welfare, Empowerment and Rights POWER
25.  Promotion of Church People’s Response - Hong Kong (PCPR-HK)
26.  Samahang Migrante
27.  Sta Maria Migrants Association
28.  Women of Philippine Independent Church- WOPIC Antique

ALLIANCES
1. BAYAN Hong Kong & Macau
2. Gabriela Hong Kong
3. Filipino Migrant Workers’ Union
4. United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)

INDIVIDUALS
1. Fr. Jay Flandez, Chaplain to Filipino Catholics, Hong Kong
2. Rev. Ray Sison, Methodist International Church
3. Ms. Daphne Ceniza-Kuok, Human rights advocate
4. Atty. Daisy CL Mandap, Journalist/migrant rights advocate
5. Mr. Leo Deocadiz, Journalist/Publisher
6. Fr. Dwight Dela Torre, Iglesia Filipina Independiente
7. Rev. Joram Calimutan, UCCP HK
8. Pastora Betty Perido, UCCP HK
9. Mr. Aaron Ceradoy, Asia Pacific Mission for Migrants (APMM)
10. Mr. Gilbert Legaspi, Resident
10. Mr. Chris Tomale, Customer Service Representative
12. Ms. Glady B. Ayo, Samahang Magdalo International
13. Fine Faderog Cariaga, OFW
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Unifil marks 34th year with call on migrants to safeguard rights

Posted on No comments

By Vir B. Lumicao

Image may contain: 2 people
A parade kicked off Unifil's 34th year celebration on Chater Road

Thirty-four years since it was founded, United Filipinos in Hong Kong continues to rally migrant workers to remain solid and continue the struggle for their rights and welfare.

Unifil chairperson Dolores Balladares-Pelaez, addressing about 300 Filipinos who gathered on Chater Road in Central today, Sept. 22, to celebrate her group’s 34th anniversary, said that despite their victories, many challenges remain.

“Nananatili pa rin ang banta sa atin na tayo ay hindi pa makakauwi sa ating bansang Pilipinas sapagkat nananatili pa rin ang labor export program at pinalalakas pa ito ng kasalukuyang gobyerno sa pamamagitan ng pagtatayo ng Department of OFWs,” Balladares-Pelaez said.

She said the Duterte government continues to be deaf to migrants workers’ gripes.
“Tatlong taon na ang lumipas subalit marami pa sa karaingan nating mga OFW, mga migrante, and hindi pa naibibigay ng gobyernong ito,” Balladares-Pelaez said.

“Kaya tama po, dapat ay hindi tayo tumigil, dapat ay magpatuloy po tayo sa ating pagiging progresibo, dapat ay magpatuloy tayo sa ating pagiging aktibista dahil kapag ipinakita nating ang ating pagsasama-sama sa pagkilos at pagiging organisado natin, nagkakaroon tayo ng mga kongkretong pakinabang dito sa Hong Kong,” she said.

She said the workers should remain united, whether they are campaigning against anti-migrant worker policies of the Hong Kong government or the Philippine government.

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Pelaez said OFWs should relentlessly fight for issues that will eventually lead to their return to their homeland and be reunited with their loved ones.

“Mangyayari lamang po iyan kung ang ating gobyerno ay magsasagawa ng mga trabaho para sa ating mga Pilipino para po tayo ay hindi na mapilitang lumabas ng bansa,” the Unifil leader said.

She said these would be regular jobs with decent salaries for Filipino workers, land for the farmers, and better social services for the Filipino masses.
“Pag iyan po ay maisagawa at maibigay sa mamamayang Pilipino, asahan nating hindi na lalaki ang bilang ng ating mga mamamayan na puwersahang nangingibang-bansa para maghanapbuhay nang mabigyan ng magandang kinabukasan ang pamilya,” she said.

Cynthia Abdon-Tellez, manager of the Mission for Migrant Workers, said her group has witnessed the development, progress, and relentless struggle of Unifil for Filipino migrants’ rights and welfare in Hong Kong.

Tellez said that Unifil would not hesitate to act, especially if the workers are victims of exploitation and whose rights are being violated.

“Hindi ninyo makikita iyan na nakaupo lang, sapagkat iyan ay magpapatuloy sa pagkilos,” Abdon-Tellez said.

She said from its original 10 member groups, Unifil membership has more than doubled.  She said there were times the number fluctuated as member-groups dissolved as leaders went home, but Unifil has remained strong and kept fighting for migrant workers’ rights.
Image may contain: 3 people, outdoor
Parade of flags by Unifil's member-ogranizations
Eman Villanueva, chairman of Bayan Hong Kong and Macau, said the activism and solidarity of Unifil and its member groups have paid off because over the past 34 years they have achieved benefits from the Philippine and Hong Kong governments though their mass actions.

“Hindi biro yung dinaanan na mahigit tatlong dekada na patuloy na pakikibaka at, higit sa lahat, patuloy na paglilingkod sa ating mga OFW ditto sa Hong Kong,” Villanueva said as he explained the Unifil slogan “Proud to be progressive.”

He said being progressive means finding ways and solutions to achieve what is best for the workers, especially in the face of adverse policies.

“Kaya kayo ho, kapag napabilang sa isang tinatawag na progresibong organisasyon, dapat  proud tayo…kasi hindi tayo tulad ng sinasabi ng iba na, ‘huwag na kayong magprotesta para sa dagdag-sahod kasi yung sahod, itataas din naman iyan kahit hindi ka magprotesta’,” Villanueva said.

He enumerated the concessions that migrant Filipino workers won through their mass actions, foremost of which was forcing the Consulate to open on Sundays when most domestic workers take their day off.

He also pointed out that the Hong Kong government began legislating annual salary hikes for migrant workers after the Unifil and allied workers groups from other Asian countries fought for them.  

The celebrations started with a mass officiated by Father Dwight dela Torre of the Iglesia Filipina Independiente/Philippine Independent Church at 9 am, and followed by a parade and cultural presentations of various groups under Unifil and other allied organizations.


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The Living Wage and the Minimum Allowable Wage

Posted on No comments

By Cynthia Tellez

Every year, the Asian Migrants’ Coordinating Body (AMCB) submits to the Labour Department its position and demands during the yearly review of the Minimum Allowable Wage (MAW). Every year, it submits a well-written position paper including the bases for their demands for wage increase. The AMCB is demanding a living wage, basing it on the definition of the International Labour Organization (ILO) of the UN that says:

‘The idea of a living wage is that workers and their families should be able to afford a basic, but decent, life style that is considered acceptable by  society at its current level of economic development. Workers and their families should be able to live above the poverty level, and be able to participate in social and cultural life.’

This is the internationally recognized living wage. But what is its relation to the MAW that the Hong Kong government is using in increasing (or decreasing) the monthly wage of migrant domestic workers?

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We have fellow migrant workers who do not fully understand the difference or relation between the Living Wage and the MAW. In fact, some jeer at or insult AMCB during its rallies without really knowing what the issues are. We will try in this article to explain the issue and in so doing discuss wage protection too.

Let us discuss first the Living Wage (LW).

‘Anker’s ILO working paper reviewed more than 60 descriptions of the LW, the characteristics of 86 municipal LW laws in the United States and 99 national minimum wage laws from around the world. He summarised the constitution of a LW into the points below. He says, it:
i. is a right according to the international community;
ii. needs to be sufficient to support a decent standard of living for a specific time and place;
iii. needs to be sufficient for a worker to support a family;
iv. needs to be based on the concept of take-home pay; and
v.  needs to be earned during normal working hours and not require employees to work overtime.’

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The living wage is at the core of the AMCB campaign for migrant workers and their families to live a decent and humane life. As described, it is a right. It is the affected sector who directly experience whether their earnings are enough or not. When we say enough, we mean as was defined above: Able to afford basic necessities. If not, then it is your right to voice out your demands that the MAW increase is way below what is called a living wage.

The MAW is not equivalent to the living wage. The computation for an increase or decrease (remember when the wage of the migrant domestic worker was reduced by HK$400) is based on MAW; how the new wage is computed is only known to the concerned department of the HK government. 

In the first place, there is no such thing as minimum wage for migrant domestic workers in Hong Kong. Minimum wage is usually legislated or passed in the Legislature as a law. So no one can change it except through legislation. So, the minimum allowable wage is in a flux, depending on the economic situation of Hong Kong. It is not something that is fixed. It can be increased, and it can be decreased.

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The living wage is pegged on the premise that in whatever situation, the wage should be enough for the worker to live a decent life. So wage cannot go down for it is just enough to meet the basic necessities of a family.

I hope that the above explanation has clarified the two issues on wages:
One, that MAW is offered by the Hong Kong government and is not necessarily internationally acceptable as far as standards for wages is concerned.

The other one is the LW which is internationally acceptable and is premised on the actual or basic needs of the worker and his/her family. And this is the core of the issue on wages being fought for by the AMCB.

But while the living wage is continuously being fought for, the current wages of migrant domestic workers must be protected. It is very much below the living wage and yet, is further pushed down by unscrupulous employers through illegal deductions, uncompensated extra work like in the house of relatives and friends, paying for accidentally broken items, etc.
At the moment, once the MAW is stated in the employment contract, your wage is fixed by the contract and it cannot be changed during the contract except at the employer’s decision. If there is a sudden policy increase or decrease on wages, the wage in the contract will prevail.
If the employer is pursuing a deduction for whatever reason, the deduction (assuming it is a legitimate one) should not be more that ¼ of the monthly wage. The wage must be given promptly. It should not be given late, say more than one week from the cut-off date.

The Mission, in some cases, encounter complaints about non-payment of wages as a punishment or underpayment of wages for agency fee “paid in advance” by the employer to the agency. The two examples are violations of the law.

Withholding of wages as a form of punishment is a violation under the protection of wages. Even if the employer went bankrupt, your wage is protected under the insolvency fund. You might be able to get only a maximum of four months’ unpaid wages; nevertheless, you will get your compensation.

Payment to an agency as placement fee is illegal if it is more than 10% of the first month’s salary of the domestic worker. The agency fee, including the processing fee and other expenses incurred related to processing must be shouldered by the employer.  The only thing the domestic worker pays for is her/his passport.

If you have further questions, please don’t hesitate to call the Mission For Migrant Workers at 2522-8264.
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This is the monthly column from the Mission for Migrant Workers, an institution that has been serving the needs of migrant workers in Hong Kong for over 31 years. The Mission, headed by its general manager, Cynthia Tellez, assists migrant workers who are in distress, and  focuses its efforts on crisis intervention and prevention through migrant empowerment. Mission has its offices at St John’s Cathedral on Garden Road, Central, and may be reached through tel. 2522 8264.
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