政府歧視外籍傭工 懷孕保障無分你我
繼去年外籍傭工減薪草案通過後，香港政府再次向本地的外籍家庭傭工(FDHs)下手，以增加勞資雙方解除合約的彈性為借口，建議削弱FDHs的懷孕保障。 政府的外籍傭工檢討文件一再堅持不應將FDHs豁免於勞工條例保障之外。文件又指出1998年中只有159個FDHs誕下嬰兒 (佔外籍傭工人口0.09%)，而有關勞資糾紛也只得1.1%，但政府仍然堅持更改FDHs的勞工合約，令到僱主可在“雙方”協議下終止合約，並給予FDHs一筆小賠償。在勞資權力不平衡，及外籍傭工在香港欠缺資源及支援的情況下，FDHs“被迫”“協議”終止合約的數字必然會增加。 政府指出很多FDHs的工作場所及其僱主所面對的處境與本地勞工一樣，那為何政府只建議更改外籍傭工的合約？政府此舉明顯是種族歧視！過去，香港政府曾發出實務守則，提倡消滅種族歧視，但現在卻帶頭建議含種族歧視的法例，出爾反爾。何況，削弱外傭保障先例一開，難保日後政府不會建議削弱所有婦女的懷孕保障。 懷孕保障是全球婦女的權益，實不容政府用任何理由削減。外籍家庭傭工為本地婦女及社會貢獻良多，我們應與外籍家庭傭工站成一線，齊齊反抗政府的種族歧視建議。 由多個外籍傭工及本地團體組成的「外籍傭工權利聯席」已草擬回應書，現呼籲各團體支持，如果 貴團體同意簽署文件，請填妥以下回條並在8月21日之前傳真到29920111，如有任何查詢，請聯絡新婦女協進會林慧霞27200891。 聯席計劃在8月29日﹝星期日﹞舉行集會及遊行。下午2時在遮打花園集會，外籍傭工及本地團體以不同方式表達對政府建議的不滿及外籍傭工的處境，下午4時游行至中環統一碼頭的勞工處﹝總處﹞遞交抗議信。聯席呼籲各位裝扮成孕婦參加遊行。
請將此聲明及呼籲廣為傳閱
Submission to the Hong Kong Labor Department Regarding the Proposed Amendment to the Maternity Protection for Live-In Domestic Helpers
Submitted by the Coalition for Migrants' Rights A. Introduction * The Coalition for Migrants' Rights, strongly opposes the proposed amendments to the conditions of applicability to live-in domestic helpers of the maternity provisions under the Hong Kong Employment Ordinance (EO) currently undergoing consideration. * The Coalition for Migrants' Rights consists of more than 20 organizations such as those offering services and assistance to migrant workers, migrant advocacy groups, women's groups, and migrant unions. Members of the coalition include Filipino, Indonesian, Thai, Nepalese and local Hong Kong groups. * The proposed amendments would alter the applicability of the maternity provisions under the EO to live-in domestic helpers. As the Labour Department has acknowledged, foreign domestic helpers (FDH) make up the bulk of the employees affected by the proposed provisions. Also, obviously, due to the nature of the subject, this proposed provision only applies to women. * In the interest of the Hong Kong people and the Hong Kong government it is the responsibility of the Labor Department to consult interested and potentially affected parties. It is our understanding that the Labour Department has only asked a select group of migrant organizations to comment, but this amendment is not only an attack on migrant rights, but also an attack on women rights, and human rights, therefore the government should conduct a public consultation forum. We regret the oversight of a formal invitation from the Labor Department to comment but at this point, we expect that our submission will be given serious consideration. B. The proposed amendment 1. In the proposal, it is clear that the Labour Department has concluded that the live-in domestic helpers should not be, through the letter of the law, excluded from the provisions of the EO on maternity protections. On the other hand, we have grave concerns about the "flexible provisions" that the Labour Department has recommended. 2. The proposal is sexist, racist and violates international human rights norms. We also have objections to the deceptive terms and concepts in this proposal. "Flexibility" is a guise for the elimination of maternity protections for FDHs and "mutual agreement" between the employer and employee, for all intensive purposes does not exist. Our final objection is to the proposed changes in the employment contract governing FDHs, a contract which is already woefully inadequately enforced. Below we have detailed the nature of this proposal, and why we are strongly opposed to any such amendment. 3. Our first objection is that any practice that is short of complete and unconditional applicability to all women will be discriminatory against women. All women have the basic right to conceive a child without fear of direct or indirect reprisal or punishment. Women, of all race, status and background should be afforded complete protection of their basic rights as recognized by both the Hong Kong government and the international community. Both the Labour Ordinance and the Sex Discrimination Ordinance recognize that all women have the right to conceive of a child and that this right is protected from retribution from employers. 4. We strongly oppose the weakening of this protection in any manner, for any sub-group of women. In fact we are calling for the full and strong enforcement of anti-discrimination legislation. We also fear that if the Hong Kong government takes steps to weaken their enforcement or ability to enforce such basic protections, it opens the door for further steps backwards in the future. The current law and its applicability ensures the protection of a basic right of women, the proposed changes weaken their ability to continue such protection. 5. Our second objection is that the proposed amendments are extremely racist, because they only apply to live-in domestic helpers who are primarily foreign women. Therefore, these proposed amendments have, intentionally or non-intentionally, targeted the foreign population. If the Hong Kong government moves to apply the provision differently to different groups of women, it then becomes a blatantly racist practice. This runs counter to Hong Kong's publicized Code of Practice on racial equality. On the one hand the Hong Kong government publicly announces that it believes racist practices need to be eliminated, and on the other hand they are initiating changes in the law that, if passed, invite racial discrimination. 6. Our third objection is that these proposed changes are in clear violation of international human rights norms, standards and treaties, e.g. the International Labour Convention No. 97 (ILC 97), and the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 7. Our forth objection is that the amendments will practically remove maternity protection. The Labour Department claims that the proposed change will only provide "flexibility" since it requires that the pregnant DH and her employer have to mutually agree on the termination. On the contrary, this provision will cancel the protection and sanctions under the existing provision. The new provision will become a convenient escape clause for employers to terminate their pregnant DH without penalty. The existing Employment Contract already provides almost total flexibility for employers, because they can terminate a FDH at will. Experience has repeatedly shown that employers have abused this prerogative thus leading to a lot of labor disputes for internal, it is typical practice of employer to summarily terminate pregnant FDH by using "laziness" or unsatisfactory work as excuses. The original intent of the existing maternity protection clause is in fact to give a specific shield to pregnant DH against possible abuse of the employer's prerogative at a time that the DH is highly vulnerable. Therefore, the proposed change will not introduce "flexibility", but will actually eliminate maternity protection. This runs counter to the actual spirit and intent of the existing provision. 8. Our fifth objection is the false assumption behind the idea of a "mutual agreement" between the employee and employer. We would like to remind the Labour Department that the relationship between a live-in domestic helper, particularly a foreign domestic helper, and their employer is not an equal relationship in terms of position, power, and resources. Therefore, it is not realistic to assume that the two parties would come to a "mutual agreement". As the Review of the Applicability of the Employment Ordinance to Live-in Domestic Helpers conducted by the Labour Department suggests, "the most common bone of contention between employers and their FDHs was whether the termination of employment was caused by resignation or dismissal (pp 3, #5)." The proposed amendments of "flexibilizing" the applicability of the EO would surely only compound this problem. The most dramatic parallel example to this is the minimum wage. An estimated 90% of Indonesians, and majority of Thais, Sri Lankans, Indians and Nepalese are underpaid. The Immigration Department is almost helpless in stopping this blatant violation of Hong Kong laws because the wage arrangements are usually made by agencies and employers outside of Hong Kong. 9. The government's own review confirms that only 159 foreign domestic helpers (0.09% of the population) gave birth, and pregnancy dispute only constitute 1.1% of the total disputes between FDH and their employers, these are "no" reasonable justification to change the Law. Hong Kong women fought long and hard for maternity protection, they would not allow the government to abuse it under the false pretence of "flexibility". We demand the complete withdrawal of this proposal, and urge the government to conduct public consultations. We demand that government should ensure participation of migrants and support NGOs in the future. Finally, we call on the government to constitute a joint review committees with us to recommend amendment to strengthen protection of women and migrant workers.
Asian Domestic Workers Union International support:
Kakampi-Philippines
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