Hong Kong’s 370,000 domestic helpers will not be getting a pay rise in the coming year, partly because of the economic slump caused by the Covid-19 pandemic, the government has revealed.
The minimum wage of foreign domestic workers will remain at HK$4,630 (US$593) a month, while a monthly allowance, for those whose employers do not provide them with food, will stay at HK$1,121.
The decision, announced on Tuesday, however, drew criticism from both helpers and employers. Eman Villanueva, a spokesman for the Asian Migrants’ Coordinating Body, argued that helpers should have had a pay rise because their workloads had increased during the coronavirus pandemic.
“The government treats us as if we are not affected by the epidemic at all,” he said, adding domestic workers had been excluded in all government relief measures but their workload had increased.
“In the past, most foreign domestic helpers only needed to prepare breakfast and dinner for their employers. But during the epidemic, children stay more at home, parents also work from home, that means more work for their helpers.
“The domestic helpers have to prepare breakfast, snacks, lunch, snacks, and dinner every day. They also have to go to the market to buy food more, and do more cleaning.”
His group had been lobbying for a wage level of about HK$5,900 a month.
But Betty Yung Ma Shan-yee, chairwoman of the Hong Kong Employers of Overseas Domestic Helpers Association, argued the government should have cut salaries instead as many bosses also suffered pay cuts and some lost their jobs because of the economic downturn.
“If the government increased the pay as the maids’ union proposed, no one would benefit. Even the maids could face being made jobless because employers would give up hiring them if they could not afford them,” Yung said.
Under government rules, to hire a foreign domestic helper, the employer must have a monthly household income of at least HK$15,000 (US$1,900) or assets of a comparable amount to support the expenses for the full two-year contract period.
In a statement on Tuesday, a government spokesman said the pay freeze decision was made after considering Hong Kong’s general economic and labour market conditions over the past year, as well as the near-term economic outlook, including the impact of the Covid-19 pandemic.
The government said it had also taken into account the affordability of employers and the livelihood of domestic workers.
“The government has decided that the levels of the [minimum allowable wage] and food allowance for [domestic helpers] should remain unchanged,” a government spokesman said.
The government reviews the pay of helpers on a yearly basis. Last year, they received a 2.4 per cent pay rise, and in 2018 the increase was 2.5 per cent.
The Court of Appeal has ruled against a domestic helper challenging the controversial Hong Kong government requirement that she and 380,000 fellow workers must live with their employers.
Filipino Nancy Almorin Lubiano lodged the city’s first such judicial challenge in 2017, arguing for a choice to live away as they called the mandatory rule unconstitutional for the threat it posed to helpers’ fundamental rights, in violation of international charters.
But the Court of First Instance in 2018 dismissed the application for judicial review, concluding it was within the director of immigration’s powers to introduce the “functional requirement” and that helpers had a choice to terminate employment, while noting the court had to “act cautiously”, given the potentially far-reaching implications if Lubiano should win.
That ruling was upheld on Monday by three appeal judges, who concluded that foreign domestic helpers could not rely on the argument of heightened risk to challenge the requirement when it fell within the scope of immigration control.
Human rights lawyer Mark Daly, who represented Lubiano as a client instructed by Daly & Associates, said the live-in requirement was part of the wider systemic discrimination faced by foreign domestic workers.
“We are disappointed in this judgment, which is a judicial stamp determining that foreign domestic workers are not worthy of the basic rights afforded to others who live and work in Hong Kong lawfully,” Daly said in a statement, adding they were considering an appeal.
Foreign domestic helpers have long called for the relaxation of the rule 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 domestic 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 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.
On appeal, counsel for Lubiano shifted the focus of their challenge to the right for adequate rest and limitation on working hours under the International Covenant on Economic, Social and Cultural Rights (ICESCR).
They argued that the live-in requirement would result in a heightened risk that a helper would be forced to work on a rest day or undertake some work involuntarily within the 24 hours of those days, notwithstanding the statutory sanctions against compulsory work when off duty. As such, the requirement was said to be a disproportionate incursion of her right under the covenant.
But the court observed that the applicant’s case was in substance a claim of forced labour, related to protections against compulsory labour under the Hong Kong Bill of Rights – the same constitutional document that gave effect to “immigration reservation” by stating that “this ordinance does not affect any immigration legislation”.
“Hence, by reason of the immigration reservation, a foreign domestic helper, being a person not having the right to enter and remain in Hong Kong, cannot rely on the argument of heightened risk of breach of the ICESCR right … to challenge the live-in requirement … which is part of the immigration control policy set by the director,” the court said in a 51-page ruling. “The appeal can be dismissed on this ground alone.”
The three judges also ruled that the covenant article in question had not been incorporated into domestic law, and sided with the government in finding that the heightened risk approach advocated by the applicant was not enough to trigger a challenge and strike down the policy.
“Judicial intervention on a mere heightened risk basis when a measure or policy itself does not actually infringe any fundamental rights is an unwarranted expansion of judicial review and would involve the courts in risk and benefit analyses which are beyond the institutional competence of our courts,” they explained.
The three judges were Court of Appeal Vice-President Johnson Lam Man-hon, and justices Thomas Au Hing-cheung and Aarif Barma.
Welcoming the ruling on Monday night, a government spokesman said the live-in rule underpinned the long-established policy that priority in employment should be given to the local workforce and importation of foreign workers should only be allowed when there was a proven manpower shortage in specific trades that could not be filled. All helpers needed to sign a contract with their employers and agree to work and live in the employer’s home, he added.
Both parties also had to give an undertaking to the government in the relevant visa application forms that the helper would only work and live in the employer’s residence.
“In other words, the foreign domestic helpers are fully aware of the ‘live-in’ requirement before signing the contract and they are admitted to Hong Kong on such basis,” the spokesman said, adding employers were required to provide their helpers with suitable and furnished accommodation and with reasonable privacy free of charge.