The treatment of migrant domestic workers was a major concern in the UN’s recent consultation with Hong Kong on the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which took place in early November.
Though CEDAW was extended to Hong Kong in 1996 while it was still under British rule, the People’s Republic of China has entered seven reservations concerning the implementation of CEDAW in Hong Kong due to ‘special circumstances.’ One such reservation regards Article 11 (2) on maternal care.
A delegation of nine representatives from Hong Kong under Permanent Secretary Annie Tam attended the 59th CEDAW consultation in Geneva from October 20th to November 7th.
Since April 2014, Hong Kong’s Labour Department has increased the number of audits of employment agencies from 1300 per year to 1800.
“To strengthen the monitoring over employment agencies (EAs), the Labour Department has since the beginning of 2014/15 increased its manpower to increase the number of inspections to EAs by nearly 40%, from annual target of 1300 to 1800.” This figure included all employment agencies, not only those that serve domestic workers.
The LD completed 1,341 audits in 2013. Nine agencies were prosecuted and seven convicted.
The Immigration Department (ID) pledged its’ commitment to “assess whether the accommodation provided by the employer for FDH is suitable, has reasonable privacy and has basic facilities/furniture,” and deny applications of employers whose housing they find unsuitable. If the ID receives ‘reports’ that the housing is unsuitable, they may follow up by physically assessing the living situation.
The Labour Department is still pondering other measures to regulate agencies.
“The LD is also considering to issue a Code of Practice, whereby the Do’s and Don’ts- like employment agencies should not be involved in foreign domestic helpers’ financial activities and personal loans- will be included for the industry to follow.”
The Live-in rule & Minimum Wage
The Hong Kong governments’ state report to the UN committee reiterated that the ‘live in’ rule should stay.
“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.”
Giving domestic workers the standard minimum wage (SMW) is unrealistic, says the LD, because it is ‘practically impossible’ to count how many hours they work.
“One of the major considerations for the exemption [from minimum wage] is the distinctive working patterns of live-in domestic workers, i.e. residing in the employer’s home, working and living in the same place, which render calculating and recording of working hours practically impossible, while SMW is set on an hourly basis.”
“It would be appropriate for the FDHs and their employers to negotiate the working time arrangement.”
Because there is no maximum working hour legislation, it is legal in Hong Kong to require domestic workers to work sixteen hours a day. “There is no discrimination against FDHs,” with regard to working hours, says the state report.
The government added that the live-in requirement is not abusive because women are aware that they will live with their employers.
“Such requirement has been made known to FDH before he/she assumes duty in the HKSAR.”
The state report also mentioned ‘other risks’ Hong Kong would face by allowing domestic workers to use public transportation or access medical care.
“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.”
The Two-week Rule
The UN committee specifically criticised the ‘two-week rule’ and asked what measures were being taken to repeal it.
The Hong Kong Women’s Coalition on Equal Opportunities, which comprises 12 women’s rights groups in Hong Kong, also called on the government to review the two week rule in their shadow report to the committee.
“We are dissatisfied with the Government’s response to the CEDAW report dated 17 January 2008 which suggested that the rationale of the Two-Week Rule is to maintain an effective immigration control by deterring job-hopping,” read the shadow report.
“Most importantly, they do not receive any financial support in the two-week period even if there is a breach of contract by the employers. Therefore, the MDWs are put at a risk of accepting new employment opportunities in a rush manner or tolerating unfair and abusive terms and conditions.”
The spokesperson from the Labour Department, reiterated the government’s 2008 argument:
“This ‘two-week rule’ is essential for maintaining effective immigration control and helps prevent FDHs from changing employers frequently or taking up illegal work in Hong Kong after contract termination.”
The Labour Department called the rule ‘appropriate’ and said it had no intention of changing it.
Hong Kong does not subscribe to Article 11 of CEDAW regarding medical care for women. Domestic workers have unique provisions regarding maternal benefits and unlike other migrants and employees under Hong Kong law, have a contract probation period before they can receive medical care for maternal issues.
In its’ shadow report, the Coalition says in the case of unplanned pregnancy, a domestic worker is often illegally terminated from her employment contract. She then has no healthcare insurance and is forced to receive emergency medical care during labour, which is risky both for her and the child. Because many families will not hire a domestic worker with a child, she is then unable to pay her medical bills.
The Coalition further questioned the lack of transparency in the Equal Opportunities Commission (EOC). One EOC commissioner, Paul Tse Wai Tsun, has angered activists with statements that were perceived as discriminatory towards migrant workers. He was also the only legislator to vote against the introduction of minimum wage in 2010.
- UN Documents, including Hong Kong’s State Report to the committee, are available here.
- The press release from the Labour and Welfare Department is available on their website.
- Read the statement from the Hong Kong Women’s Coalition on Equal Opportunities here.
- Contact the Commissioner for Labour. Email FAO Cheuk Wing-hing at firstname.lastname@example.org. Or contact the Licensing of Employment Agencies Department on email@example.com, telephone: Tel: 2852-3535 or fax for free via Outfax at 2851-0834. Or Write to FAO Cheuk Wing-hing, The Commissioner for Labour, Labour Department, 16/F, Harbour Building, 38 Pier Road, Central, Hong Kong.