FDHs
Sue HKSAR Government on Wage Cut
Foreign Domestic Helpers (FDHs) in Hong Kong filed today a case before the High
Court questioning the legality of the levy/wage cut imposed by the HKSAR Government
on FDHs.
Named respondents were HKSAR Chief Executive in Council, the Director of
Immigration and the Employees Retraining Board. The plaintiffs included seven FDHs (5 Filipinos and 2 Indonesians), two migrant
organizations and a Filipino lawyer residing in Hong Kong who is an employer of a
domestic helper .
The case is being handled pro bono by Massie & Clement Solicitors and barristers
Gerard McCoy SC (Queens Counsel), Phillip Ross and Neil Thomson. The case is seeking a court order to set aside and declare as illegal and
unconstitutional the decision by the Chief Executive in Council on 25 February 2003 to
reduce the minimum allowable wage (MAW) of FDHs by HK$400 per month and the
levy of HK$400 imposed on employers of FDHs. The lawyers also are claiming for
damages, on behalf of the plaintiffs, for money wrongly expropriated by the HKSAR
Government.
Lawyers for the plaintiff is arguing that the decision of the HKSAR Chief Executive in
Council imposing a wage cut on FDHs is ultra vires (exceeded its authority) on technical
grounds and on having been based on "irrelevant consideration". They will also argue
that the levy on employers of FDHs is actually a tax imposed on FDHs which is illegal
and unconstitutional.
It was noted that the HKSAR Government made the decision imposing the levy and
wage cut without the passage of a substantive law and therefore they are without any
legal effect. As it is argued that the levy is a form of taxation on FDHs, the Legislative
Council should have approved the imposition of this tax as required by Article 73 (3) of
the Hong Kong Basic Law.
The case brief also stated that the levy imposed on employers is in breach of the
equality of laws guaranteed in Article 26 of the International covenant on Civil and
Political Rights as applied by Article 39 of the Hong Kong Basic Law and in breach of
the equal treatment rights guarantee under Article 6 (1) of the Intenational Labour
Convention No.97 -Migration for Employment Convention(Revised) 1949 as applied
by Article 39 of the Hong Kong Basic law.
Philippine President Gloria Macapagal Arroyo earlier announced that the Philippine
Government will fully support Filipino workers in Hong Kong who will avail themselves of
all possible mechanisms to contest the levy or wage cut even as efforts of Philippine
officials will continue to explore all means possible in calling upon the sense of fair play
of the HKSAR Government for it to reconsider the implementation of this discriminatory
policy.
The First Gentleman, Atty. Jose Miguel Arroyo recently visited Hong Kong and met with
lawyers (Massie & Clement Solicitors and barristers) who have volunteered to assist
and handle this case pro bono as an expression of their belief in the justness of the
cause of FDHs.
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