Foreign domestic workers in Hong Kong

Live-in rule forces domestic workers to be on call 24 hours a day, court hears

Barrister representing Nancy Almorin Lubiano, a domestic worker from the Philippines, calls requirement ‘repugnant’

PUBLISHED : Monday, 09 October, 2017, 5:17pm
UPDATED : Monday, 09 October, 2017, 7:03pm

A barrister advocating for a choice to allow the 350,000 foreign domestic helpers in Hong Kong to live apart from their employers argued in court on Monday that there must be a separation between work and rest for employees.

Otherwise, Paul Shieh Wing-tai SC said: “It cannot be called an employment.”

His client, Nancy Almorin Lubiano, a domestic helper from the Philippines, is challenging the mandatory “live-in” rule imposed by the director of immigration in 2003, in a landmark judicial review at the High Court.

It is repugnant to any employment relationship to require somebody be on standby 24 hours a day
Paul Shieh Wing-tai SC

Shieh had argued that the rule is unlawful and unconstitutional, in terms of the prohibition against servitude in the Hong Kong Bill of Rights and the customary international rule against forced labour, because it heightened the risks of infringing helpers’ rights.

Citing government evidence, Shieh noted that officials had intended for foreign domestic helpers to be on standby 24 hours a day as they were expected to provide flexible and readily available services.

“In every employment relationship, there must be a segregation between work time and rest time,” he told Mr Justice Anderson Chow Ka-ming. “It is repugnant to any employment relationship to require somebody be on standby 24 hours a day.”

End to live-in rule will not solve domestic helpers’ problems, government argues

Shieh also countered government arguments claiming that overworked foreign domestic helpers were driven by economic reasons, rather than the contested rule.

“No rule exists in a vacuum,” he continued. “To say they are vulnerable because of features unrelated to the live-in rule is unrealistic.”

Shieh said it was not necessary for his team to produce tonnes of evidence to show the plight of foreign domestic helpers as the court should apply a combination of common sense and available evidence to determine how employers would be tempted to behave when workers live with them.

But he argued that it was the government’s burden to produce up-to-date evidence on the impact of lifting the rule to justify the policy.

Such evidence includes the number of foreign domestic helpers who want to live separately from their employer, the number of employers who are prepared to agree to the arrangement, and the number of local workers who are prepared to do the same work as foreign domestic helpers, he said.

But the government produced only “bare rhetoric without evidence” in asserting that Hong Kong’s labour, transport and housing sectors would take a toll, Shieh said.

Judgement has been reserved.