August 8, 2022

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Legal With Effect

Hong Kong domestic helpers on maternity depart should be authorized to dwell aside from businesses, legal professionals argue in second legal bid



a group of people sitting in front of a crowd posing for the camera: Domestic helpers enjoy their day off in Central. Photo: Jonathan Wong


© SCMP
Domestic helpers love their working day off in Central. Photo: Jonathan Wong

Domestic helpers on maternity leave need to not be forced to continue to be with their employers, in accordance to attorneys mounting a 2nd judicial problem in opposition to the Hong Kong government’s stay-in coverage for this kind of workers.

Counsel Kay Chan on Thursday stated his shopper Yvette Dingle Fernandez was place in “an unachievable situation” final calendar year when officers refused to waive the need, as her employer insisted that she will have to are living in her office, apart from her daughter, Eloisa Valerie Fernandez, who was born a few weeks premature.

He argued that the authorities had misinterpreted his client’s common employment contract, which needed her to “get the job done and stay in the employer’s residence”, as he submitted that the city’s 370,000 domestic helpers ended up entitled to the same labour defense as the neighborhood workforce.

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“The regulation safeguards go away days,” Chan told the Higher Court docket. “If a domestic helper is no cost to do what he or she needs on depart days, and this is protected by legislation, how does it adhere to that he or she can be necessary to return at certain hours?”

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The counsel stated helpers were entitled to reside outside the house all through maternity go away and the refusal to grant waivers had “big ramifications” as being out would necessarily mean breaching the agreement, which would hamper their long run applications for visas.

“The applicant was put amongst quite a few rocks and many difficult areas,” Chan said.

But Mr Justice Anderson Chow Ka-ming questioned whether or not the judicial critique application was misconceived.

“If you are ideal, asking for a waiver is a total purple herring,” the judge observed. “She is building trouble for herself.”



The High Court in Admiralty. Photo: Warton Li


© Supplied by South China Early morning Article
The Significant Court in Admiralty. Photograph: Warton Li

Chan replied that the court docket could appear into the commissioner of labour and director of immigration’s interpretation of the coverage and the foundation for refusing to grant waivers.

“There is no hiding that whichever way the circumstance goes, it would go on enchantment,” the counsel stated.

“I’ve never considered that to be applicable at all,” the choose replied.

The exact same courtroom in February 2018 threw out the city’s initially obstacle against the controversial rule, mounted by Nancy Almorin Lubiano, a indigenous of the Philippines, arguing for a alternative to reside apart from her employer.

That ruling was upheld by the Court of Enchantment final September, after Fernandez mounted the present software.

Domestic helpers have long termed for the peace of the rule released in April 2003 as a lot of argued the arrangement heightened the threat of abuse found in the shocking case of Erwiana Sulistyaningsih in 2014.

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But the federal government taken care of the necessity was an necessary feature of the labour importation scheme created and produced to meet up with the desire for stay-in domestic solutions, and countered that lifting the rule could have significant repercussions for Hong Kong’s economic system and culture.

Abraham Chan Lok-shung SC, for the govt, claimed the requirement was plainly stated in the agreement and was basically applied for immigration control, in regard of entry and remain in Hong Kong.

“The helper is to reside the place the employer resides,” the senior counsel stated. “That is the essence of the dwell-in coverage.”

He also produced very clear that the need would use in the course of the period of the work marriage, such as maternity leave, specifically if the employer and the helper did not agree on the typical arrangement of returning to the home nation, which he observed was the minority of scenarios.

Helpers who return to their dwelling countries to give beginning without the need of their employers’ consent would therefore have technically breached their contracts.

“A person is the natural way drawn to the perspective of the helper,” he continued. “But there is also the employer’s stage of check out. It would be quite mistaken to presume every employer would act unreasonably or with no sympathy.”

Chow has reserved judgment.

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This short article initially appeared on the South China Morning Write-up (www.scmp.com), the foremost information media reporting on China and Asia.

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