Press Release No. 139-03
3 April 2003
FDH's SUE HKSAR GOVERNMENT ON LEVY/WAGE CUT

Foreign Domestic Helpers (FDHs) in Hong Kong filed on 02 April a case before the High Court questioning the legality of the levy/wage cut imposed by the Hong Kong Special Administrative Region Government (HKSAR) on FDHs.

Named respondents were the 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 workers’ 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 and Clement Solicitors and barristers Gerard McCoy SC (Queen Counsel), Philip Ross and Neil Thomson.

The plaintiffs are 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 are also claiming for damages, on behalf of the plaintiffs, for money wrongly expropriated by the HKSAR Government.

Lawyers for the plaintiffs are arguing that the decision of the HKSAR Chief Executive in Council’s imposition of a wage cut on FDHs is “ultra vires (exceeded its authority) on technical grounds and on having been based on irrelevant considerations.” 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 decided to impose the levy and wage cut without the passage of a substantive law and are therefore 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 employees 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 guaranteed under Article 6 (1) of the International 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.

END.