Toddler assault case in HK highlights plight of FDHs
At first sight Erlinda Benavidez Organista may not appear to be a victim. A 40-year-old foreign domestic helper (FDH) from the Philippines, she pleaded guilty in December last year to one count of assault involving a 2-year-old boy in her care. Yet she was able to walk free from court last month with nothing more than a suspended sentence.
Nevertheless Organista’s case highlights, once again, the exploitative conditions that many FDHs fall victim to during their employment in Hong Kong. For, in the course of her trial, it emerged that she had been required to work 14 hours a day.
Eighty-five-hour weeks, however, are not uncommon among domestic helpers in the SAR, where no stipulation is made for maximum working hours in the Standard Employment Contract (SEC) for FDHs, and where the mandatory live-in requirement means that domestic helpers are effectively on call 24-six or 24-seven, as more than one-third of them are not even allowed to take a day off, according to a study published in 2016 by the non-governmental organization Justice Centre Hong Kong (JCHK). According to another study, carried out in 2017 by HelperChoice, an online platform for helpers and employers, a staggering 58 percent of domestic helpers here actually work in excess of 14 hours a day.
The findings of both these surveys provide a persuasive argument for not only stipulating maximum working hours in the SEC but also removing the mandatory live-in requirement. The latter is particularly important as it would also help to protect domestic helpers against the threat of physical or sexual abuse — a threat that manifested itself again earlier this month in the case of an Indonesian helper who was allegedly raped by her employer’s son.
Thankfully most of the abuse suffered by domestic helpers here is nonviolent. In addition to foregoing their statutory day off, for instance, they may be deprived of their holidays. Indeed 13 percent of the women surveyed by HelperChoice said they had worked for more than a year without a single holiday. For a society that was ranked 16th out of 113 jurisdictions in the World Justice Project Rule of Law Index 2017-18, this is clearly an unwelcome anomaly.
Another common abuse of domestic helpers here is substandard sleeping arrangements. The SEC stipulates that FDHs are entitled to “suitable accommodation ... with reasonable privacy”. However, in a survey conducted in 2017 by the concern group Mission for Migrant Workers, 43 percent of domestic helpers said they were not provided with a private room, with as many as 2 percent of these saying that they slept in areas such as storage rooms, cupboards, balconies or even toilets. The underlying issue here, of course, is the ongoing housing shortage in Hong Kong and the resulting pressure on living space. However such considerations are largely irrelevant to a helper who is already having to deal with the ignominy of sleeping in a toilet.
In spite of the abuses that many helpers face, some do not even receive their salary or food allowance in full. The author is an educator, commentator and director of a company providing English language services in Hong Kong. In fact, according to the JCHK study, more than half of domestic helpers here receive less than the minimum allowable food allowance (currently only HK$1,075 per month). Nevertheless most helpers are still reluctant to leave their employer, as a result of the infamous “two-week rule” (which gives them only two weeks to find another employer after the termination of their original contract). For women whose families depend on the remittances they send back home every month, this makes leaving an abusive employer effectively impossible — particularly if, before traveling to the SAR, they wracked up debts at the hands of an employment agency in their home country.
Debts incurred overseas are often compounded by the excessive placement fees charged by many employment agencies here. The placement fee should not exceed 10 percent of the FDH’s monthly salary (HK$452 if calculated on the current minimum allowable wage). However, according to an undercover investigation carried out in 2017-18 by the Federation of Asian Domestic Workers Unions, the average fee for new domestic helpers here is more than HK$9,000. The result, according to the JCHK study, is a debt-to-income ratio of 30 percent or more among 35 percent of the domestic helper population.
It seems likely that all the abuses outlined above have been occurring ever since a scheme for FDHs was first established here back in the 1970s. Last year’s government action plan to enhance the protection of domestic helpers was therefore long overdue. The action plan, which included the introduction of a 24-hour hotline for helpers, clearly represents a step in the right direction. However, given that there is still no stipulation for maximum working hours in the SEC, and that both the mandatory live-in requirement and the “two-week rule” remain, it is difficult to see how it will actually improve the lives of most domestic helpers here.
It is against this backdrop that the case of Erlinda Benavidez Organista must be viewed. For while her actions were undoubtedly “rude and heartless”, to quote from the magistrate’s judgment, her conditions of employment were undoubtedly heartless too.