DiscrimiNation?

The issue of discrimination against foreign domestic helpers is a difficult and often emotionally charged one. There are about 224,000 domestic helpers working in Hong Kong today. Many people claim they enjoy relative prosperity compared with their compatriots back home, citing the financial security of a minimum wage, a right not shared by Hong Kong residents. But the fact remains that discrimination against this minority is enabled by Hong Kong law. Assistant professor James Rice, a lecturer at Lingnan University and author of a book on migrant-workers rights in Hong Kong, “Take Your Rights Seriously,” has identified several areas in which Hong Kong legislation fails to protect foreign domestic helpers against exploitation. He says: “The first trap that these women face is before they even arrive in Hong Kong, where they fall victim to cutthroat employment agencies The law here does nothing to protect them. Then there’s the controversial maid levy and the 2003 pay cut, as well as the ‘two-week rule’ and the migrant workers’ subsequent inability to gain resident status in Hong Kong.”

Residency and the Two-Week Rule

The two-week rule applies when a domestic helper leaves a job. It allows helpers just 14 days to seek a new employer in Hong Kong before they must return to their home country. It was introduced in 1987 as a means of combating “job-hopping,” whereby helpers would repeatedly quit jobs and take up new employment as a means of staying in Hong Kong indefinitely. There are four exceptions: the employer’s death, bankruptcy or emigration, and abuse cases. But there are many situations in which domestic helpers are not offered protection.

Migrant women’s refuge Bethune House last year took in 1,212 helpers from across Asia, most of whom were awaiting the outcome of court cases. But not all. “We recently took in a domestic helper with cancer,” says Edwina Antonio, who works at the refuge. “Her employer wouldn’t sign her contract but she needs to stay in Hong Kong to have chemotherapy. We’ve been trying to find the appropriate documents for her, as the immigration tribunal won’t extend her visa unless a doctor certifies she must stay. Basically, if you don’t fit the four criteria, it’s nearly impossible to stay.”

Rice questions the legitimacy of the rule. “It’s Hong Kong’s immigration policy, but it’s not actually the law,” he says. “I find it extraordinary that an immigration policy is able to override the law. A visa should be valid for as long as agreed. Employers should not have the power to determine the length of stay for these women by terminating their contracts. That decision should be made by the immigration tribunal.”

Although the two-week rule was deemed constitutional in a 1989 appeal (Vegara & Arcilla vs. Attorney General), the director of the Hong Kong Human Rights Monitor, Law Yuk-kai, believes that if the ruling were appealed today it would be found to be in breach of the Basic Law. “The Immigration Ordinance expressly excludes foreign domestic helpers from right of abode, which goes against article 24 of the Basic Law,” he says. “Besides, this argument that the rule prevents ’job-hopping’ is not a cogent one. There’s no penalty for employers who constantly switch maids. It’s completely unfair.”

Rice believes the government is exploiting technicalities to prevent domestic helpers from achieving resident status. “Domestic helpers are expected to take a leave of absence every two years or so, which the government sees as a break in full-time residency status. It’s a total fiction; businessmen can leave Hong Kong for months at a time without compromising their status as residents. Other countries, such as the States, will give resident status to anyone that does their seven years there, no matter what their vocation.”

It’s a matter that has attracted international attention. In 2005, the United Nations Committee on Economic, Social and Cultural Rights expressed concern over the two-week rule, saying it violated the statute of basic human rights in two areas: the right to non-discrimination and the right to work. It recommended a “review [of the] existing ‘two-week rule,’ with a view to eliminating discriminatory practices and abuse arising from it, and to improving legal protection and benefits for foreign domestic workers so that they are in line with those afforded to local workers.”

Local human-rights lawyer Mark Daly sees the rule as the cause of many of the other discrimination problems faced by helpers. “The main problem with the two-week rule is what is known in contractual law as inequality of bargaining power,” he says. “The domestic helper is in no position where she can challenge any terms of her contract, and as a result, she will often fall victim to unreasonable work demands, illegal pay cuts and other means of exploitation. My belief is that if the two-week rule was amended, these other problems would naturally fall away.”