By Daisy CL
Mandap
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| 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the policy withdrawn, alleging it has left FDWs vulnerable to abuse.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.
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| 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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