This week, 20 immigration officers visited Ma Wan village on Park Island to arrest four domestic workers, whose crime was living under a different roof than their employers.
Two employers of one of the women were also arrested and later released on bail. The male employer told the South China Morning Post: “Some employers that have a live-in nanny make them work up to 18 hours a day and some I know don’t even get a day off.”
An immigration officer reported that the four women were arrested on suspicion of making false representations to an immigration officer. Under clause three of the standard employment contract, both parties agree that the domestic worker will live at the same premises as the employer.
According to the Hong Kong Labour Department, infringing clause three is akin to making a false representation to an immigration officer, and carries a maximum punishment of $150,000 in fines and 14 years in prison. Domestic workers accused of the same could be black-listed and deported. By contrast, in the recent trial against a local Hong Kong employer for grievous bodily harm with intent, the accused faces a maximum jail time of seven years if found guilty.
In a recent consultation, the UN High Commission on the Elimination of all forms of Discrimination Against Women (CEDAW) questioned the morality of Hong Kong’s ‘live in’ rule. In response, the Hong Kong government representative committee stated:
“The employers’ affordability in providing separate accommodation to their FDHs, the additional medical costs, insurance and other risks by allowing FDHs to live out as well as issues such as the additional pressure on private housing and public transportation, etc. should also be fully taken into account.”
While it is true that some families are not able to afford to provide separate accommodation, the statement above fails to acknowledge that at the same time, providing accommodation for a live-in worker is not ideal or cost effective for every family.
A 2013 Mission for Migrant Workers report found that 25% of domestic workers lived in kitchens, corridors, storage rooms or with their employer’s children. As indicated by the shared housing case above, cost effective solutions can be found that give workers and their employers greater privacy.
The ‘pressure’ on private housing and public transportation that would allegedly be caused by domestic workers who would chose to live out is minute in comparison to the 54 million people that visit Hong Kong each year.
Why would Hong Kong promote tourism and real estate investment to foreigners, yet discourage domestic workers from supporting these systems?
“The importation of FDHs has been allowed to meet the acute and long-standing shortage of full-time live-in domestic helpers in the local labour market. Any change to the requirement that FDHs must reside in employers’ residences (the ‘live-in’ requirement) will go against the rationale for importing FDHs and the fundamental policy that local employees should enjoy priority in employment.” (emphasis added)
Though no one is questioning the right of local people have job preference, the Hong Kong government has not explained how the live-in rule protects local employees. The statement above also seems to confuse ‘live-in’ with ‘full-time’.
A 2002 Caritas report negated this assumption, pointing out that foreign domestic workers take up more low-wage work, and that there was no direct competition between them and local workers.
In the Ma Wan case above, the employer and employee negotiated an ideal arrangement that allowed her to live on her own, but still maintain full time hours– a decision denied to domestic workers, but given to other foreign workers in the city under current law.
By enforcing the live-in rule, the HKSAR is infringing on the rights of both the employer and employee to determine a working and living situation that is mutually acceptable.
The Hong Kong government also insists that requiring domestic workers to live with their employers is not abusive because domestic workers are aware of the situation before they accept employment:
“Such requirement has been made known to FDH before he/she assumes duty in the HKSAR.”
However, telling someone beforehand that you are going to infringe on their rights does not make it morally acceptable or legal under international conventions, including CEDAW.
The Hong Kong government has acknowledged that working hours and living requirements should be negotiated between employer and employee – however most arrangements are impossible to pre-determine as the negotiations are made between employment agencies and employers, with the domestic workers themselves completely left out.
It is true that the people in the SCMP’s article broke the law. However, the law is what needs to be changed and updated. Regardless of your stance on broader domestic workers rights, the ‘live-in’ rule takes away rights of both the employer and employee to determine their own living situation.