LegCo Paper No. CB(1)1655/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/BC/41/95/2

Bills Committee on Employment (Amendment) Bill and Employment (Amendment) (No.2) Bill 1996

Minutes of Meeting held on Tuesday, 29 April 1997, at 4:30 p.m. in the Chamber of the Legislative Council Building

Members present :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP (Chairman)
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon LEE Kai-ming
    Hon LEUNG Yiu-chung

Members absent :

    Hon Michael HO Mun-ka
    Hon Henry TANG Ying-yen, JP
    Hon James TIEN Pei-chun, OBE, JP
    Hon Bruce LIU Sing-lee
    Hon Paul CHENG Ming-fun

Public officers attending :

    Ms Esther LEUNG
    Principal Assistant Secretary for Education and Manpower
    Mr TSANG Kin-woo
    Acting Deputy Commissioner for Labour
    Mr Clement LUK
    Senior Crown Counsel
    Attorney General’s Chambers
    Mr Peter WONG
    Senior Crown Counsel
    Attorney General’s Chambers
    | (Human Rights Unit)

Attendance by invitation :

    Employers’ Federation of Hong Kong

    Ms Jodi KOON
    Assistant Manager

    Hong Kong Employers of Overseas Domestic Helpers Association
    Mrs Betty YUNG MA Shan-yee
    Chairman
    Mr Joseph LAW
    Vice Chairman
    Ms Josephine ONG
    Executive Committee Member

Clerk in attendance :

    Miss Polly YEUNG
    Chief Assistant Secretary (1)3

Staff in attendance :

    Mr Jonathan DAW
    Consultant (Legal Service)
    Mrs Queenie YU
    Senior Assistant Secretary (1)8

I. Meeting with deputations and the Administration

The Chairman welcomed the deputations and the Administration to the meeting. She explained that the main purpose of the meeting was to receive representations and to deliberate on the Employment (Amendment) Bill 1996.

Employers’ Federation of Hong Kong (EFHK)

(LegCo Paper No. CB(1)1247/96-97(01))

2. In reply to the Chairman, Ms Jodi KOON confirmed the EFHK’s stance in support of the Bill as it represented the tripartite consensus reached at the Labour Advisory Board (LAB). The EFHK would support progressive improvements of labour welfare, while maintaining Hong Kong’s competitiveness with its neighbouring countries.

Hong Kong Employers of Overseas Domestic Helpers Association (HKEODHA)

(LegCo Paper Nos. CB(1)1247/96-97(03), CB(1)1382/96-97(01) and 1401/96-97(01))

3. Mrs Betty YUNG declared that the HKEODHA was an interest group representing over 100,000 employers of foreign domestic helpers (FDHs). Representatives of HKEODHA expressed their disappointment that the LAB had not duly considered the views of employers of FDHs. At the Chairman’s invitation, they presented salient points of their submission and members deliberated on the following major issues.

Prohibition of hazardous work

4. Representatives of HKEODHA objected to the provisions which prohibited an employer from requiring a pregnant employee to handle "heavy, hazardous or harmful" work. Since such terms were not clearly defined in the context of FDHs’ routine domestic duties, the intrinsic nature of such duties which often involved physical exertions would easily result in disputes.

5. The Acting Deputy Commissioner for Labour (DC for L) responded that according to the Director of Health, domestic duties would not normally be injurious to a pregnant FDH provided that the pregnancy itself was not complicated medically. He also remarked that in families without FDHs, it was not uncommon for pregnant mothers to undertake routine domestic duties during the entire period of pregnancy.

6. Representatives of HKEODHA nevertheless pointed out that a medical practitioner would normally form his/her medical opinion on the basis of symptoms described by the pregnant employee. Furthermore, the Bill, if passed, would create additional workload for the Commissioner for Labour (C for L) in giving a final ruling on cases of conflicting medical opinions. In response, DC for L advised that the C for L was already entrusted with similar statutory powers for cases involving long service payment and that the Occupational Health Division of the Labour Department was well-placed to make the necessary judgements.

7. Referring to the proposed requirement for an employer to accede within 14 days to the employee’s request to be removed from heavy, hazardous or harmful works, representatives of HKEODHA considered the proposal unfair and impracticable as the period was too short for making alternative arrangements. They pointed out that many employers of FDHs were modest-income couples normally working full time to support their families. It would be unrealistic to expect them to be available at short notice to relieve their FDHs.LD
LD

8. At the Chairman’s request, the Administration agreed to provide a copy of the written advice given by the Director of Health on this subject and, if possible, advise further on the types of domestic chores which were considered hazardous or otherwise. As DC for L had confirmed that statutory provisions on prohibition of hazardous work during pregnancy were also available in overseas jurisdictions, the Chairman requested the Administration to provide the Bills Committee with further details.

Qualifying service for protection against dismissal

9. Representatives of HKEODHA raised strong objection to the proposed removal of the 12 weeks’ qualifying service for protection against dismissal. They pointed out that in practical effect, a pregnant FDH who had been working continuously for the employer for four weeks only would be entitled to unpaid maternity leave. They opined that such provisions would be weighted too much in favour of FDHs, especially new recruits, at the expense of their employers who often had to rely on medical reports from overseas and the recommendations of employment agencies when selecting their FDHs. The Association maintained that the four-week period was unrealistic, if not impossible, for employers to verify the health status of their newly recruited FDHs. In the event that a FDH was pregnant, she would not be able to perform her full duties for nearly half of the contract period. In this regard, Mr LEE Cheuk-yan suggested that the employment agency concerned should be held responsible for indemnifying the employers for their loss. Nevertheless, this suggestion was considered impracticable by the HKEODHA as employers had no authority in monitoring the performance of employment agencies. A member nevertheless supported the objective of according protection to female employees once they were pregnant.

10. In reply to the Chairman, DC for L explained that the present package of maternity protection evolved from a series of improvements proposed by the Administration since 1980’s. He also gave the following statistics to illustrate that despite a growing number of FDHs in Hong Kong in recent years, the number of claims lodged by them against their employers had decreased:

Year

Number of claims

Number of FDHs in Hong Kong

1994

2,896

141,368

1995

2,655

157,026

1996

2,052

164,299

He also advised that according to statistics of the Labour Department, the number of cases in which female employees were allegedly dismissed because of pregnancy was 44, 92 and 61 in 1994, 1995 and 1996 respectively.

11. Representatives of HKEODHA were of the view that existing provisions in the Employment Ordinance had provided FDHs with reasonable maternity protection. They objected to the Bill because of its serious impact on the employers of FDHs which the Administration had not thoroughly considered and addressed. Bearing in mind that temporary full-time, live-in FDHs were not readily or even lawfully available, employers would have enormous practical difficulties in complying with the law as it would not be possible to arrange a replacement within a short time to take up domestic duties which might include looking after small children, disabled and or elderly family members.

12. Referring to the fact that FDHs were not required by law to continue their service with the same employer after confinement, representatives of HKEODHA remarked that employers of FDHs alone had to bear the additional costs in finding a replacement and be responsible for their pregnant FDH at their own home. They therefore disagreed with the suggestion that employers would merely suffer the inconvenience of arranging staff redeployment. The Association stressed that in overseas countries, the government would maintain a fair balance between employees’ rights and the burden on employers when introducing labour laws. They referred to the UK and said that paid maternity leave was not the automatic responsibility of employers and that small employers were able to claim back maternity-related paid leave from the government. Representatives of HKEODHA therefore urged the Administration to reconsider the impact of the Bill from the point of view of employers of FDHs. They also suggested that the Immigration Department should be consulted on any amendment to labour law affecting FDHs.

13. Some members did not share the views of the HKEODHA and made the following comments :-

  1. in an employment situation, it was the employer’s responsibility to make alternative arrangements when his/her employees were sick or unfit to work;

  2. the Administration should address the practical difficulties faced by employers of FDHs by increasing, for example, the provision of child-care and elderly centres instead of denying FDHs maternity protection; and

  3. the well-being of FDHs as employees must be considered in the light of their contributions to the economy of Hong Kong and the overall objective of improving maternity protection.

Limitation on the number of surviving children for maternity leave pay

14. Representatives of HKEODHA did not support the proposal of removing the limitation on the number of surviving children for entitlement to maternity leave pay. They argued that despite the trend of reducing family size in Hong Kong, this might not be the case in the Philippines, Indonesia or Thailand where the majority of FDHs came from. The Bill might even induce FDHs to become pregnant and give birth in Hong Kong at the expense of their employers and taxpayers.

15. Responding to members’ enquiries on child birth statistics, DC for L informed the meeting that according to statistics compiled by the Census & Statistics Department, the number of live births to the fourth or more child in Hong Kong was 7,069 in 1991, 2,541 in 1993 and 1,924 in 1995. Statistics on the number of FDHs giving birth in Hong Kong were not available. A member expressed his reservations at the assumption that FDHs would plan their pregnancy merely to take advantage of the medical and maternity benefits in Hong Kong.

Exclusion of FDHs from the Employment Ordinance

16. In presenting their stance on the Bill, representatives of HKEODHA raised a fundamental issue that FDHs should be considered as a unique labour group in terms of their nature of employment and should be suitably excluded from the Employment Ordinance. They also referred to current provisions in the Ordinance which excluded civil servants and family members residing with the employers from its coverage.

17. Some members objected to the suggestion of the HKEODHA on the grounds that it was discriminatory and considered that the subject should best be reviewed in due course in a wider context. PAS for E&M reiterated the Administration’s objective in introducing the Bill i.e. to improve the existing maternity protection, provisions for female employees under the Employment Ordinance. She added that quite a number of concerns raised by the HKEODHA pointed to the fundamental policy question of whether employers of FDHs should be excluded from the coverage of such statutory maternity protection provisions. As such, they should be considered separately. The Chairman, nevertheless, advised members and the Administration that in scrutinising the Bill, due consideration had to be given to concerns raised by the parties affected. Since the HKEODHA had depicted a number of practical difficulties caused by the Bill, they should be properly looked into and addressed. In this connection, she requested the Administration to provide the Bills Committee with a copy of International Labour Convention No.3 and the relevant paragraphs of the United Nations Convention on the Elimination of All Forms of Discrimination against Women.EMB

18. In the light of HKEODHA’s representation, Consultant (Legal Service) suggested and the Chairman agreed that the Administration should clarify its position in writing on the question of whether there were features of the employment relationship between an employer and his/her live-in domestic helper which might legally justify the modification of the general provisions relating to employees’ maternity rights. Such information from the Administration would facilitate members’ consideration of the rational and proportional justifications, if any, which would not amount to unlawful discrimination.EMB
EMB/
AGC

19. The Senior Crown Counsel (Human Rights Unit) shared the concerns that the legal implications on the issue of discrimination raised in the case of FDHs would require careful examination. The Administration undertook to provide its written advice to the Bills Committee. In this connection, the Chairman also requested the Administration to provide a more detailed written response to salient points in the written representation of HKEODHA.

20. The meeting ended at 6:30 pm.

Legislative Council Secretariat
23 May 1997

Last Updated on 11 December 1998