Hong Kong’s High Court has thrown out the second judicial challenge to the government’s controversial requirement for domestic workers
to live with their employers, even during maternity leave.
Yvette Dingle Fernandez and her daughter, Eloisa Valerie Fernandez, had applied for judicial review of officials’ refusal in July 2019 to grant a waiver of the live-in requirement in her case, after her employer insisted she live in her workplace and apart from her newborn.
Their lawyers had accused the government of misinterpreting domestic helpers’ standard employment contracts, which stipulate that they must “work and reside in the employer’s residence”, arguing the city’s 370,000 helpers were entitled to the same labour protection as the local workforce.
But Mr Justice Anderson Chow Ka-ming on Wednesday observed that the application was based on a “false premise” and a “fundamental misunderstanding” of the requirement, because neither the director of immigration nor commissioner of labour had any proper basis to grant the waiver sought once the true legal nature and effect of the live-in rule was understood.
The director, Chow explained, had no role to play in any proposed variations of the contract and was entitled to take enforcement action if there was a breach, even if the commissioner had consented to the helper and employer’s mutual agreement for her to live elsewhere.
The Court of First Instance judge further concluded that the commissioner was entitled to adopt a practical approach and decline to process Fernandez’s case, given that her employer – the other binding party to the contract – had not agreed to a variation of the live-in clause.
In that situation, it would be futile for the commissioner to provide the “no objection letter” sought, or exercise his restricted power in giving his consent to a variation, Chow said.
But the judge also made it clear that his dismissal of the application should not be read as the court’s acceptance of the government stance that a helper was required to live or stay in her employer’s residence during her statutory holidays or annual and maternity leave.
“A final determination of the construction issues must await an appropriate case coming before the court in which the issues are properly raised,” he wrote.
Acknowledging the court ruling, a government spokesman reiterated the administration’s stance that the live-in policy was to connected to “the long-established policy that priority in employment should be given to the local workforce”.
“Importation of foreign workers should only be allowed when there is proven manpower shortage in specific trades that cannot be filled by local workers,” the spokesman said.
“It is along this policy objective that live-in foreign domestic helpers have been imported.”
Yvette did not go back to her employer’s home after being discharged from hospital on June 14, 2019 when she had called her boss with news of the baby, only to be told that only she could return.
Instead, she took Eloisa to stay in premises offered by PathFinders, a Hong Kong charity supporting migrant mothers.
The next day, her employer complained to the Immigration Department about her non-compliance.
Such a breach of contract can lead to adverse immigration consequences for the helper in any future application for an employment visa or extension of stay.
Yvette later lodged a claim at the Labour Tribunal against her employer for unlawful and unreasonable termination of employment, as well as a complaint with the Equal Opportunities Commission against the employer for discrimination.
She returned to the Philippines with her daughter last March, while their civil claims are still ongoing.
Domestic workers in Hong Kong have long called for the relaxation of the rule, which was introduced in April 2003 and implemented through standard employment contracts and pledges when helpers applied for visas.
Before that, they could arrange outside accommodation as long as they obtained consent from their employers and relevant authorities. In 2002, there were about 100 such cases among the 200,000 helpers in the city.
Many argue the live-in arrangement heightens the risk of abuse, as seen in the shocking 2014 case of Erwiana Sulistyaningsih, whose Hong Kong employer was jailed for six years for torturing her.
But the government maintained the requirement was an essential feature of the labour importation scheme, designed and developed to meet the demand for live-in domestic services, and countered that lifting the rule could have serious repercussions for Hong Kong’s economy and society.
The same court in February 2018 sided with the government in throwing out the city’s first challenge against the controversial rule, mounted by Nancy Almorin Lubiano, a native of the Philippines, who argued for the choice to live apart from her employer.
That ruling was upheld last September by the Court of Appeal, which concluded that domestic workers could not rely on the argument of heightened risk to challenge the requirement when it fell within the scope of immigration control.
In the latest challenge, the government argued the requirement was implemented for immigration control and would apply throughout the duration of the employment, including maternity leave.
The judge said he could “see the force” in the second argument, but questioned when a helper would be regarded as no longer living with their employer.
Examples he gave to test the argument included a helper going on a local overnight staycation away from her employer’s residence during statutory holidays, returning to her home country for annual leave, or to give birth on maternity leave.
Chow observed that whether a person lives in a place cannot be determined by reference to the number of hours in a day, or the particular time, they physically stay there.
“It also seems to me that a person does not cease to reside in his regular residence merely by reason of a temporary absence from the residence,” he said.
He concluded it was debatable whether a domestic helper was strictly required to live or stay in her employer’s residence during statutory holidays lasting for more than a day, annual leave or maternity leave.
But the present case was not the right one to finally determine the true construction of the live-in clause because of how it was formulated, Chow said.
The question isn’t who is going to let me; it’s who is going to stop me.