Thursday, November 26, 2015   

Challenge to pay cuts

Daniel Hilken

Wednesday, September 08, 2004

Five maids began a court challenge on Tuesday to last year's cut in

the minimum wage for foreign domestic helpers, saying that together

with a levy on employers, it amounted to an illegal tax.

The 11 per cent cut, which reduced the minimum wage to HK$3,270, was

accompanied by an identical levy which is theoretically charged to


But the Court of First Instance heard that most maids have had their

wages reduced to the new minimum figures show this is the case for

81 per cent of Filipinas so it is they who effectively pay the levy.


The maids say the new cut and the corresponding levy, which is

expected generate about HK$1 billion in government revenue, are

illegal because they were passed without approval by the Legislative


Former attorney-general John Griffiths, SC, representing the five

Filipinas and one Indonesian in the High Court, told a packed

courtroom that Article 73(3) of the Basic Law required all taxes to be

approved by Legco. The barrister said Legco had not approved the cut

or the levy and that no authenticated copy of the imposition had even

been published.

Legco was merely informed in a brief by the Labour Branch that on

February 25, 2003, the Chief Executive had imposed a "retraining

levy" of HK$400 per month on foreign domestic helpers and had reduced

their minimum wage by the same amount.

Griffiths added: "Clear provisions exist for the accessibility of

laws by the public and also for democratic supervision of such

legislation by the members of Legco. The formalities are there to

protect the public. But the reduction in the minimum wage was achieved

by administrative means."

Griffiths, citing case law before Justice Michael Hartmann, argued

that despite the levy being made for "retraining", it was

nevertheless a tax because it was made on foreign domestic helpers

only, while retraining was given to both local and resident workers.

The court action was brought against the Chief Executive, the Director

of Immigration and the Employees' Retraining Board, by way of judicial

review, in which the court reviews procedures followed by public


Top senior counsel Benjamin Yu, representing the government, argued

that the reduction in the minimum wage and imposition of the levy at

the same time were an "unfortunate coincidence".

This caused some mirth in the court with Justice Hartmann commenting

that the man on the street would say "pull the other leg".

Outside the High Court more than two dozen maids chanted slogans and

held signs reading "Uphold Justice".

Employers may pay more than the minimum, but since most do not, the

cut affects most of Hong Kong's maids. According to official

statistics, as at the end of July foreign domestic helpers numbered

217,000, mostly from the Philippines, but also from Indonesia,

Thailand and Nepal.

The levy was initiated by the Liberal Party in 2002. It proposed a

monthly levy of HK$500, which would ease the budget deficit.

At that time party chairman James Tien argued that maids were


"This [his proposed new minimum wage] is still the highest pay in

Asia," Tien said.

"That's why Hong Kong is a magnet for foreign domestic helpers . . .

in Singapore, the monthly wage of Filipina maids is about HK$1,400, in

Malaysia it is HK$1,130."

Tien argued that Hong Kong dollars could buy more in Southeast Asia

after the hefty devaluation of regional currencies following the 1997

financial crisis.

But Edwina Santoyo, of the Asian Migrant Co-ordinating Body, had said:

"We've had enough. They've never stopped putting pressure on foreign


The hearing is scheduled to last for the rest of the week.

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