Live-in policy increase female FDW's vulnerability to various types of abuse

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

Study conducted by Mission for Migrant Workers Limited

2|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES INTRODUCTION In an effort to determine the effects of the Hong Kong government’s Immigration Policy requiring foreign domestic workers to live in their employer’s residence since 1 April 2003, the Mission for Migrant Workers has conducted a study involving: A. Survey covering 3004 Foreign Domestic Workers (FDW’s) from various nationalities (Indonesians [1509–50%], Filipinos [1218-42%], Thais [1816%], Sri Lankans [32-1%], Nepali [27-1%]) identifying their vulnerabilities to abuse while working and staying with their employers and families. The survey asks basic questions regarding demographic information, types of abuse experienced, living conditions, awareness of laws and policies that affect domestic workers (CCTV camera law and HK ID989), as well as personal opinions about the live in requirement. The Indonesian, Filipino, and Thai surveys were translated into Bahasa Indonesia, Tagalog, and Thai, respectively.

The Sri Lankan and Nepali surveys were distributed in English. As with any survey, many respondents chose to leave items blank, so any data presented is a low estimate of actual conditions.

• Marital Status: 36%-single, 45% married, 8% separated, 6% widowed • No. of children: 54%-childless, 19%-1, 16%-2 , 8%-3 children, 3%-4 • Age Range: youngest–19 years old; oldest–68 years old • Length of time working in HK: shortest–4 days; longest–31 years and 6 months B. Case Studies illustrating different experiences of female FDW’s on the live-in arrangements: (cases involving sexual abuse; verbal and physical abuse; long working hours; inadequate and unsuitable accommodations and sleeping quarters; insufficient and unsuitable food provisions; imposed duties beyond signed contract) C. Focus Group Discussions (FGDs) with representatives from different FDW Organizations (around 50 migrant organizations) and Alliances (United Filipinos in Hong Kong-MIGRANTE, PILAR, GAMMI, LIPMI, Overseas Nepali Workers Union, Association of Sri Lankans, Thai Regional Alliance) gathering their views and position regarding the Mandatory Live In Policy implemented by the HK government in April 2003 This primer shares the outcome of the study.

MFMW Limited April 2013

Note: Statistics provided by HK Immigration Department on Foreign Domestic Workers in Hong Kong as of end December 2011 is 299,961. This was before the study was started in June 2012. Indonesians 148,153 (49.39%); Filipinos 144,553 (48.18%); Thais 3323 (1.11%); others including Nepalese and Sri Lankans 3,932 (1.31%).

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

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What is the Live-in Requirement for Foreign Domestic Workers (FDW)?

The Live in Requirement for FDW’s is a Policy of the Hong Kong Government compelling foreign domestic workers to reside and work only in their employer’s residence at a specified address. It was one of the provisions added when the Standard Contract for FDW’s was reviewed in early 2000 and eventually revised by the HK government in April 2003.

Prior to this date, foreign domestic workers were permitted by the Immigration Department to arrange outside accommodation as long as the employers were willing to shoulder the costs. Since the policy was enforced, it became part of various Immigration Department’s provisions and guidelines such as the Quick Guide for Employment of Domestic Helpers [ID(E) 989], the Guidebook for Employment of Domestic Helpers [ID(E) 969] and the Standard Employment Contract (ID407), which is the only valid employment contract recognized by the HK Labour Department between foreign domestic workers and their employers.

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2|Why was this policy enforced?

The policy was put in place by the HK government arising from the belief that the fundamental principle on Foreign Domestic Helpers policy was the “provision of full-time, live-in domestic service” for Hong Kong residents. Therefore, it had been considered necessary to tighten up the live-in requirement.

“An FDH is admitted into Hong Kong for full-time, live-in employment with a specific employer to perform domestic duties at the employer’s residence specified in the Standard Employment Contract(the Contract) (ID407). It is provided in Clause 4(a) of the Contract that an FDH should only perform domestic duties for the employer specified in the Contract.

The employer should not require or allow the FDH to carry out any nondomestic work. It is also stated in Clause 4(b) that the FDH should not take up any other employment, including part-time domestic duties, with any other person. The employer should not require or allow the FDH to carry out any work for any other person. Clause 4(c) of the Contract stipulates that Clauses 4(a) and (b) will form part of the conditions of stay to be imposed on the FDH by the Immigration Department upon the FDH’ s admission to work in Hong Kong. A breach of Clauses 4(a) and (b) will render the helper and/or any aider and abettor liable to criminal prosecution.”

FAQ General Remarks, HK-Immigration Department

According to this principle, FDW’s should not be allowed to live outside the employer’s residence, as such arrangement would affect the job opportunities of Local Domestic Workers. Hence, the live-in arrangement is supposed to prevent foreign domestic workers from moonlighting, partaking in “illegal work in the evenings” or taking other parttime work that would compete with job opportunities for local domestic workers.

However, earlier studies by Caritas Hong Kong have already debunked this assertion by the HK government:

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES “Foreign Domestic Helpers mainly fill up long working hours (longer than 12 hours), and low wage domestic work (the minimum salary for FDHs is HK$3670). Local domestic helpers (LDH) are less willing to take up such positions. Thus, the LDHs and the FDHs serve two different markets.

There should be no direct competition. Therefore, amending the FDH’s employment contract is unlikely to be an effective means to increase employment opportunities for the LDHs.” SURVEY RESULTS FOR LIVE-IN RULE ON FDH by Caritas Hong Kong, Community Development Service, Asian Migrant Workers Social Service Project, 28 March 2002

Nonetheless, the HK government went on to implement the policy in 1 April 2003.

3|What does this policy imply?

This policy essentially indicates that either or both parties (employers and foreign domestic workers) are restricted from making the option of arranging outside accommodations for the domestic worker, otherwise they would be breaching the contract and are liable to criminal prosecution.

Simply put, Foreign Domestic Workers must live and stay in with their employers even after their work is supposedly done, practically 24 hours a day. And since they need to stay in the residence of their employers, it necessarily entails the provision of accommodations with corresponding facilities. Food must also be provided, if food allowance is not paid for by employers. (b) The Employer shall provide the Helper with suitable and furnished accommodation as per the attached Schedule of Accommodation and Domestic Duties and food free of charge. If no food is provided, a food allowance of HK$__________ a month shall be paid to the Helper.

Employment Contract for Domestic Helpers Recruited from Abroad, Clause 5b

6|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES What issues are being confronted by the FDW’s as a result of this policy?

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In March 2002, Caritas Hong Kong Community Development Service came up with a study about the possible implications of the no live out policy for the foreign domestic workers. At that time, based on the results of the study, there were already apprehensions and concerns being raised if the said arrangement became mandatory.

“Allowing FDH to stay out might relieve the stress of their employers if they do not have space to accommodate them. Restraining from living out may force some FDHs to live in very unfavourable situations when the employers cannot provide. “

CARITAS, March 2002

The Caritas study then gave the recommendation to the HK government to leave the option of accommodations to both employers and employees.

In the 10 years since the implementation of the mandatory arrangement, the concerns earlier raised regarding the implications of the rule have become grim realities for many FDW’s: 4a. Suitable accommodations and facilities Despite the fact that the standard employment contract states that employers must provide “suitable accommodations” and “reasonable privacy” for their FDW’s, many among them are not being granted with such.

Survey shows that 30% among more than 3000 respondents do not have a room of their own and are made to sleep with other family members, even sometimes with males in the household. A 24 year old female FDW revealed having to share a room with the two male children of her employer ages 16 and 19. Many among them have to contend with inadequate and unsafe accommodations, accepting sleeping spaces in the living room,

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

corridors or kitchen or even in the storage rooms, verandas and the toilets.

Some sleep in makeshift beds on top of cupboards and ovens. On the other hand, since many HK apartments are small, employers who would wish better accommodations for their domestic workers cannot let them stay elsewhere because of the said policy.

4b. Food Provisions The contract stipulates that an employer is responsible for providing food for the FDW (or substituting an HK$875 food allowance). However, many FDW’s raise the issue of inadequate or unsuitable food provided by employers. An FDW reported being given only a cup of rice and a chicken wing (or soup stock with chicken bones) divided into three separate meals. Other FDW’s complain of being given spoiled or expired food.

4c. No definite work time schedule Because of the live-in policy, an FDW is essentially on call 24 hours a day. This leads to long working hours. 37% reported having to work 16 hours a day while 9% reported working 19 hours straight. On top of these long hours, many FDW’s are awakened from sleep by their employers even for the most menial tasks such as fetching a glass of water. Due to this unpredictability, many FDW’s lack sleep necessary to maintain their health and work capacity.

8|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES 4d. Duties beyond the signed contract While the Standard Contract stipulates domestic duties which must be fulfilled by the domestic workers, some employers require FDW’s to perform work outside these parameters. They are required to carry out duties at an employer’s business, in their relative’s household or to care for the elderly or ailing parents.

FDW’s are forced to abide or else face the threat of termination by employers. This directly contradicts the rationale for why the policy was implemented in the first place.

“A foreign domestic helper should only perform domestic duties for the employer’s residence specified in the contract. The employer should not require or allow the helper to carry out any work for any other person, otherwise, the helper and/or any aider and abettor will be liable to criminal prosecution.”

FAQ General Remarks, HK Immigration Department

4e. Work during rest days and holidays Even though the contract is clear that an FDW is entitled to 24 hour rest day for a week’s work and during holidays, employers force their FDW’s to work before going out and after they return. FDW’s don’t have a choice since they live with their employers.

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

“You should provide your helper at least one rest day in every period of seven days. A rest day is a continuous period of not less than 24 hours.”

Practical Guide For Employment of foreign domestic helpers Q4 on Rest Days, Hong Kong – Labour Department

4f. Safety and Privacy FDW’s also express having no private space for them to relax and rest in between working hours or after their work has been accomplished. 25% of respondents stated they do not feel like they have any privacy or feel safe most likely due to the fact that many sleep in common areas of the household such as the living room, corridors, or the kitchen.

Added to this is the fact that many households install CCTV cameras (20%), even in areas where the HK law prohibits them such as rooms where they sleep or in bathrooms. 55% of respondents were not even aware that a law exists prohibiting CCTV cameras installed in these private spaces.

One domestic worker stated, she found out that she was being watched by the male employer when her ward informed her that her father has video footage of her sleeping in her night wear.

10|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES Does the Live in Requirement increase the vulnerability of female FDW’s to abuse?

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Survey results from among more than 3000 female FDW’s in Hong Kong who have worked and lived with their employers 24 hours a day reveal this sad reality: Type of Abuse

Indonesians (1509)

Verbal Abuse

1081 72% 453 37% 139

77%

23

85% 23 72%

1719

58%

Physical Abuse

225

Sexual Abuse

87

Filipinos (1218)

Thais (181)

Sri Lankans Nepalese (32) (27)

OVERALL (3004)

15% 198 16%

81

45%

6

22% 10 31%

520

18%

6%

9

5%

1

4%

182

6%

85

7%

➢ 58% (1,719) of FDW’s experience verbal abuse in their employer’s households in the form of name-calling, insults, criticism of work, accusations, threats, or other types of verbal abuse. There is a high incidence of verbal abuse among Sri Lankans (85%), Thais (77%), Indonesians (72%) and Nepalese (72%). ➢ 18% (520) of FDW’s experience physical abuse from their employers in the form of poking, hair pulling, slapping, shaking, pinching, kicking, or other types of physical abuse such as throwing items on the FDW’s.

0

0%

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

➢ 6% (182) of FDW’s experience different types of sexual abuse ranging from sexual innuendos/slurs, touching or fondling of body parts to rape in the residence of their employers. There is a high incidence of sexual abuse among Indonesians (87 among those surveyed in their group) and Filipinos (85 among those surveyed in their group). ➢ 25% of FDW’s surveyed categorically stated that they do not feel safe in their sleeping space/quarters; 23% gave no response ➢ 25% of FDW’s surveyed categorically stated they do not feel safe living in their employers residence; 26% gave no response ➢ 45% of the FDW’s surveyed stated that live in arrangement contributes to abuse of FDW’s; 25% gave no response ➢ Several of the respondents did not consider certain forms of ill-treatment as violations to their rights. For example is verbal abuse (name-calling, swearing), which they believe to be a normal part of being a “maid” or “helper”. ➢ A significant number of respondents had a very narrow view of sexual abuse, defining it only as rape. They mistakenly thought inappropriate touches, sexual slurs, or being watched over video did not qualify as sexual abuse.

12|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES What are the factors contributing to the abuse of female FDW’s in live-in arrangements?

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Despite the fact that there is a high incidence of abuse among FDW’s, many still stay and endure the abuse because of the circumstances which led them to work abroad in the first place: ➢ No job opportunities in country of origin ➢ debt problem from placement fees ➢ economic pressures to support family members in the country of origin Abuse is seen as part of the job ➢

FDW’s especially those coming from Indonesia and the Philippines say that part of the orientation provided by the Recruitment Agencies or even government agencies is for them to be obedient and subservient. ➢ For the Nepali, since the Ban on Hiring of the Nepalese was set in 2005 by the HK government, those who decided to stay felt they need to hang on to their jobs.

If their contracts get terminated and they can’t find employment within 14 days (2week rule), then they don’t have a choice but to go back home to their country for good.

Isolation and seclusion makes FDW’s more vulnerable.

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES Employers also feed into this mindset

The economic power an employer has over the FDW gives the employer a sense of entitlement to enact abuse without fear of repercussions.

Many FDW’s have reported their employers saying: ➢ “You are just a maid, a servant…” ➢ “We pay you, so you follow what we want, or else…” ➢ “You don’t have a right to complain because you came here to work for us and we paid the agency a lot to hire you…”

Sending government’s orientation, neglect and inattention to FDW’s plight ➢ Labor Export Policy–Sending governments are more concerned in the earnings the FDW’s remit to their countries rather than their welfare.

- Example : Pre-Departure Orientation Seminar (PDOS) and other training programs do not emphasize safeguarding FDW’s rights but instructs how they must remit their money

14|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES Given this reality FDW’s face in relation to the Live-in Requirement, what rights are being violated?

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There are several:

➢ Violations in the Standard Employment Contract and HK Labour Ordinance: The employer shall: o “..require the prospective helper to perform domestic duties only”; o “..not allow or require the prospective helper to take up any employment with any other person during the contractual period as specified in the employment contract”; o “..let the helper work and reside at the contractual address only”; o “..provide the helper with decent accommodation and suitable privacy”; o “.. provide the helper with food free of charge.”

Eligibility Criteria of a Foreign Domestic Helper, Guidelines for the Employment of FDH, ID 969

The Standard Employment Contract and HK Labour Ordinance have provisions which are supposed to protect FDW’s but these rights are often violated. Individual households are seldom monitored by appropriate government bodies and FDW’s do not file complaints due to lack of awareness of their rights or for fear of termination of their contracts:

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

C189 is the Domestic Work Convention passed during the International Labour Organization’s (ILO) 100th Labour Conference in June 2011 which recognizes domestic work as real work.

➢ Violations in International Labour Law such as provisions in ILO Convention No. 189 : o o o o o o

Preamble, Article 3 : The promotion and protection of human rights of all domestic workers , Article 5: Protection against all forms of abuse, harassment and violence Article 6: Decent living conditions that ensure worker’s privacy ; Article 9: Choice on whether or not to reside in employer’s household Article 9: Not obligated to remain in the household during periods of rest or leave Article 10: regulation of stand-by hours

Text, ILO Convention 189, Decent Work for Domestic Workers

C189 is the Domestic Work Convention passed during the International Labour Organization’s (ILO) 100th Labour Conference in June 2011 which recognizes domestic work as real work.

Member-governments still need to ratify the convention and are being given two years to have it synchronized into their laws and policies before it becomes adopted in their country. FDW organizations in Hong Kong are still clamoring to have C189 ratified by the Chinese Government.

16|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES Does the implementation of the policy really live up to what it is supposed to protect?

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There is no evidence provided by the HK government to support the reasoning that the mandatory live-in policy would prevent foreign domestic workers from partaking in “illegal work”.

The fact is: ➢ Employers make their domestic workers work beyond what is agreed in the contract despite the policies set. ➢ The study of Caritas in 2002 showed that all the respondents who were living out of their employer’s homes were not actually involved in part time jobs while only a few respondents who had part time work were in fact staying with their employers. ➢ The live-in requirement only increases the vulnerabilities of FDW’s to various forms of abuse in their employer’s residence as indicated in this study.

The UN Human Rights Committee (UNHRC) raised concerns about the impact of the live in policy as well: According to their report during its 107th session on 11-28 March 2013, the UNHRC is “concerned about the discrimination and exploitation suffered by a large number of migrant domestic workers and the lack of adequate protection and redress provided for them (articles 2 and 26)”. It therefore suggested that Hong Kong “should adopt measures to ensure that all workers enjoy their basic rights, independently of their migrant status, and establish affordable and effective mechanisms to ensure that abusive employers are held accountable.” It therefore recommended repealing the two week rule and the live-in requirement.

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

9|How do the FDW’s view the Policy? ➢ While 77% of respondents (18% had no response) say that they know that they must live in their employers residence; 52% are not aware that it comes from the Hong Kong Immigration Department Policy ID 989. ➢

When asked about which they prefer: o 35% preferred to live outside their employers residence o 44% preferred to live in with their employers o 12% thinks it doesn’t matter o 9% gave no response

➢ The main concerns of the respondents with regards to their accommodations are: o Privacy and personal space o Safety and security o More time for rest and sleep o Convenience

18|LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES What is the view and position of migrant workers organizations regarding the Mandatory Live-in Policy?

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➢ Given the violations being committed to migrant workers’ rights perceived to be related to the Policy, the migrant workers organizations demand the scrapping of the mandatory live in requirement and instead to grant the option to the domestic workers and/or their employers whether to live in or stay out depending upon the specific circumstances of the households. ➢ FDW Organizations think that there is no evidence to prove that the Live in Requirement protects the local domestic workers rights from job competition with FDW’s. They say that the policy has not stopped employers from making the foreign domestic workers work outside what is stated in their contract, and as earlier researches show “FDH and LDH serve 2 different markets”, therefore it does not affect the other sector’s employment opportunities. ➢ The FDW Organizations instead demand for the stricter implementation of laws which protect both local and foreign domestic workers and the enactment of other provisions ensuring that the rights of all domestic workers are protected and upheld. ➢ FDW Organizations are appealing to the Chinese Government for the ratification and implementation of International Labor Organization Convention 189 (C189 – Convention on Decent Work for Domestic Workers) to protect rights of domestic workers

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LIVE-IN POLICY INCREASES FEMALE FDWs’ VULNERABILITY TO VARIOUS TYPES OF ABUSES

References 1. HK Immigration Department Quick Guide for Employment of Domestic Helpers [ID(E) 989] 2. HK Immigration Department Guidebook for Employment of Domestic Helpers [ID(E) 969] 3. HK Immigration Department Standard Employment Contract (ID407) for FDH 4. HK Legislative Paper No. CB (2) 2116/04-05(07) 5. HK Legislative Paper No. CB (2) 1769/04-05(01) 6. Practical Guide For Employment of Foreign Domestic Helpers – What foreign domestic helpers and their employers should know. Hong Kong Labour Department, September 2012 7. Frequently Asked Questions (FAQs), Foreign Domestic Helpers, Hong Kong Immigration Department, 21 March 2013 8. HK Immigration Department Statistics on FDW’s as of end December 2011 9. MFMW Ltd. NLOP Research Results, February 2013 10. International Labor Organization Convention 189 (ILO C189) Document 11. Text of the Convention Concerning Decent Work for Domestic Workers 12. SURVEY RESULTS FOR LIVE-IN RULE ON FDH by Caritas Hong Kong, Community Development Service, Asian Migrant Workers Social Service Project, 28 March 2002 13. UN Committee on Human Rights-Concluding Observations on the Third Periodic Report of Hong Kong, China, March 2013

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The Mission For Migrant Workers Limited would like to thank all the foreign domestic workers who participated in the survey and shared their stories with us; members and representatives of the various migrant workers organizations and alliances in Hong Kong which gave their views and insights about the policy; and other individuals who in one way or the other got involved in the research. We could not have undertaken and completed the study without your invaluable input and worthwhile participation.

THANK YOU! MARAMING SALAMAT! TERIMA KASIH! DHANYA BAAD! KHOB KHUN KA! ISTUTI! MFMW Limited April 2013 _________________________________ Project funded by: HERFUND