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What to expect when you're expecting

Foreign domestic workers are a vital sector within Hong Kong with one in every 20 employees in Hong Kong being a migrant worker, and most of these being women of childbearing age. However, they are caught in a humanitarian tsunami resulting from the live-in rule [1].



The rule, which was introduced in 2003, had previously been under judicial review because of its unconstitutional nature in the Lubiano case [2]. More recently, the live-in rule has been under judicial review in relation to pregnancy discrimination after a mother sued the High Court this week [3]. In 2014, a survey showed that 7% of foreign domestic workers face pregnancy discrimination while working for their employer [4] and it goes without saying that this number has increased significantly over the years due to the large influx of migrant workers entering Hong Kong.


However, the question remains, what should domestic workers expect when they’re expecting, or more so, what consequences await domestic workers when they’re expecting?


Currently, the standard employment contract and the employment ordinance are silent when it comes to pregnancy [5] and maternity leave which means that migrant domestic workers do not know what their rights are regarding pregnancy when signing the contract for their employer. Consequently, this allows employers to interfere in the private lives of domestic workers by threatening them with the termination of their contract if they do fall pregnant or forcing them to have contraceptive injections before taking their annual leave [6]. Sadly, many of these cases go unreported due to fear of termination or are insufficiently investigated.




Undoubtedly, employers have no right to interfere with the reproductive rights of domestic workers. In fact, domestic workers are entitled to 10 weeks paid maternity leave and it is prohibited for an employer to dismiss a pregnant employee just because they are pregnant [7]. However, many domestic workers are unaware of these rights and there seems to be a lack of clarity regarding where a foreign domestic worker must reside during their annual/maternity leave.


Clearly, the live-in rule facilitates these rights violations by allowing employers to have a considerable amount of control over the lives of foreign domestic workers and reinforces the stereotype that domestic workers are second class citizens and are treated differently to other women [8].


What does the future hold for the domestic worker community living in Hong Kong when the country is unwilling to amend a policy which consistently allows for violations of their fundamental rights?


- Olivia Daibell

References

1. McQue K, “How Hong Kong Maids Became Caught in a 'Humanitarian Tsunami'” (The GuardianJuly 22, 2019) <https://www.theguardian.com/global-development/2019/jul/22/fired-pregnant-hong-kong-maids-deserted-by-employers-homeless-domestic-workers> accessed November 6, 2019

2. Nancy Almorin Lubiano v Director of Immigration [2019] HKCFA 33

3. “Domestic Helper Whose Employer 'Tried to Separate Her from Baby' Sues Government” (South China Morning PostOctober 30, 2019) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3035623/hong-kong-government-sued-high-court-domestic-helper> accessed November 6, 2019

4. Equal Opportunities Commission, "Sexual Harassment and Discrimination in Employment – Questionnaire Survey for Foreign Domestic Workers" (Equal Opportunities Commission, January 2015) <https://www.eoc.org.hk/eoc/upload/ResearchReport/2014112711564340970.pdf> accessed November 6 2019

5. “Domestic Helper Whose Employer 'Tried to Separate Her from Baby' Sues Government” (South China Morning PostOctober 30, 2019) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3035623/hong-kong-government-sued-high-court-domestic-helper> accessed November 6, 2019

6. Mahee and HelperChoice, “Pregnancy Rights of Your Helper in Hong Kong” (HelperChoice BlogNovember 4, 2019) <https://blog.helperchoice.com/pregnancy-domestic-helper/> accessed November 6, 2019

7. (Labour Department - Frequently Asked Questions) <https://www.labour.gov.hk/eng/faq/cap57h_whole.htm#q5> accessed November 7, 2019

8. “Domestic Helper Loses Bid to Live Away from Employer” (South China Morning PostFebruary 14, 2018) <https://www.scmp.com/news/hong-kong/economy/article/2133296/judge-quashes-domestic-workers-bid-change-live-out-rule-hong> accessed November 7, 2019

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