By Daisy CL Mandap
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Bed in kitchen: This is what live-out advocates want stopped
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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.
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| 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
