Hong Kong government sued in High Court by domestic helper who says employer insisted she lived at workplace but refused to accommodate her baby

• Mother challenges mandatory live-in policy, seeking declaration that helpers can stay outside workplace while on leave or holiday
• Yvette Dingle Fernandez says her boss demanded she stayed on site during maternity leave – without her baby

A domestic helper has sued the Hong Kong government for refusing to lift its mandatory live-in policy during her maternity leave, after her employer allegedly insisted she must stay in her workplace but refused to accommodate her baby.

In a notice filed with the High Court this week, Yvette Dingle Fernandez said her employer told her she would have to live in Sheung Shui apart from her child, on the same day she gave birth to daughter Eloisa Valerie Fernandez on June 14.

Fernandez's lawyers argued her contract terms did not limit where a domestic worker could stay during rest days, holidays or maternity leave, and that the government's refusal to exercise discretion was in breach of a fundamental right to family, as guaranteed by the Hong Kong Bill of Rights.

The mother and daughter are now seeking damages and a declaration that all foreign domestic helpers employed under the standard employment contract are free to stay outside their "place of work" on holidays or while on leave, including, but not limited to, maternity leave.

Their application for judicial review on Monday came after the same court in February 2018 threw out the city's first challenge against the controversial rule, mounted by Nancy Almorin Lubiano, who is also from the Philippines.

Foreign domestic helpers have long called for the relaxation of the rule introduced in April 2003 as many argued the arrangement heightened the risk of abuse seen in the shocking case of Erwiana Sulistyaningsih in 2014.

But the government maintained the requirement was an essential feature of the labour importation scheme designed and developed to meet the demand for live-in domestic services, and countered that lifting the rule could have serious repercussions for Hong Kong's economy and society.

In the latest challenge, Fernandez said she made enquiries with the immigration and labour departments to see if she was required to stay in her employer's residence, after learning she was pregnant in December 2018 and due to give birth on July 4 this year.

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In those replies, as recorded in the writ, she learned the policy would be applicable throughout her employment, even while she was pregnant.

"The Labour Department also stated that the Employment Ordinance and the standard employment contract are silent on the arrangement of the newborn baby of the foreign domestic helper and whether the foreign domestic helper should take leave in her home country or in Hong Kong so parties should agree on the arrangements beforehand," the writ continued.

She later learned through the organisation, Help for Domestic Workers, that the commissioner of labour could exercise discretion in waiving the policy so she wrote to the two departments again.

But the Immigration Department on July 3 directed her to the Labour Department, while the latter on July 31 refused to grant the waiver since "no consent has been given by (the) employer to live-out".

In a reply to the Post, a Labour Department spokesman said helpers were not allowed to reside outside their employers' residence except in very exceptional circumstances, but that they could move back to their home country and resume duty in Hong Kong after maternity leave if an agreement was reached with the employers.

"Foreign domestic helpers and their employers are advised to discuss the maternity leave arrangements as soon as possible," the spokesman said.

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Fernandez has lodged claims against her employer at the Labour Tribunal and the Equal Opportunities Commission and received a settlement of HK$7,172.50 (US$915), but more than half of that was returned to the employer as one month's salary in lieu of notice, according to her lawyers. Those claims are ongoing.

Government statistics showed that more than 390,000 domestic helpers were working in the city, as of the end of May.

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