Maternity Protection Convention, 1919 (No. 3) - China - Hong Kong Special Administrative Region (RATIFICATION: 1997)

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Article 3 (a) and (b)of the Convention. Maternity leave period. The Committee notes with interest the information provided by the Government as to the amendments to the Employment Ordinance (EO) (Chapter 57 of the Laws of Hong Kong), sections 12(2)(a) and 12AA, and to the Civil Service Regulation (CSR) 1297, sections (1)(a)(i) and (1) (b), concerning the extension of the maternity leave period from 12 weeks to 14 weeks, and as to the mandatory post-natal leave period of 10 weeks.

Application of the Convention in practice. The Committee takes due note of the indication by the Government that it is reviewing the terms of its 1997 declaration on the manner in which the Convention applies to the Hong Kong Special Administrative Region. The Committee invites the Government to keep it informed of any developments in this regard and to communicate the text of the declaration once modified.

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Articles 3(c) and 4. Payment of maternity cash benefits and prohibition of dismissal during maternity leave. The Committee takes note of the information provided by the Government in reply to its previous comments, concerning the provision of maternity leave pay and maternity medical benefits to women workers who have been dismissed during maternity leave. It notes that, according to the Government, maternity leave pay is provided by employers to women who have been dismissed, unless it is proven by the employer that the dismissal was related to the workers’ misconduct, as set out in section 9 of the Employment Ordinance. The Committee recalls that Article 4 of the Convention affords full protection to women against dismissal during maternity-related leave.

The Committee observes that making employers directly liable for the costs of maternity benefits interrupts the provision of those benefits in case of unlawful termination of employment, and, therefore, may well lead to discrimination on the labour market. In allowing the dismissal of workers during maternity leave, section 9 of the Employment Ordinance is not only inconsistent with Article 4, but also with Article 3(c) of the Convention, once it results in the cessation of payment of maternity cash benefits to women for the full and healthy maintenance of herself and her child, which is not connected to the modality of possible dismissals during this period. The Committee requests the Government to take the necessary measures to bring the national legislation into conformity with the Convention, by amending, as soon as possible, section 9 of the Employment Ordinance to expressly prohibit employers from giving notice of dismissal to their workers for whatever reason during maternity-related leave, and to guarantee that, during this period, maternity benefits will be provided.

The Committee is raising other matters in a request addressed directly to the Government.

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Article 4. Prohibition of dismissal during maternity leave. The Committee asks the Government to indicate whether the women dismissed during maternity leave for the reasons stated in section 9 of the Employment Ordinance maintain their maternity cash and medical benefits entitlements.

Application of the Convention with modifications. The Committee recalls that, upon declaring the Convention applicable to the Hong Kong Special Administrative Region in 1997, the Government made certain modifications as to the manner in which this instrument would apply to this territory. Considering that the legislation applicable thereto has since been amended, the Government may wish to consider whether the terms of the 1997 declaration should be modified in consequence.

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normal'>(notification: 1997)

The Committee notes the information provided by the Government concerning the application in practice of Article 3(a) of the Convention (obligatory postnatal maternity leave of six weeks). It wishes to draw the Government’s attention to the following point.

Article 4. Prohibition of dismissal during maternity leave. In its previous comment, the Committee had asked the Government to indicate whether in practice, according to section 15(1)(a) of the Employment Ordinance, a woman worker may be given notice of dismissal for the reasons set out in section 9 of the Employment Ordinance while she is on maternity leave. In response, the Government states that in practice it would be difficult to substantiate the summary dismissal of an employee under section 9 during her maternity leave because summary dismissal is a serious disciplinary action requiring very strong justifications and, in accordance with section 15(1)(b) of the Employment Ordinance, the burden of proof is on the employer. Furthermore, the acts of misconduct triggering summary dismissal need to be in relation to the employee’s employment and therefore would unlikely to be committed when the employee is taking maternity leave. The Committee, however, understands that, according to section 15(1)(a) of the Employment Ordinance, read in conjunction with section 9, a woman worker can be dismissed without notice during maternity leave for acts committed before the beginning of maternity leave but discovered while she is taking such leave. As Article 4 of the Convention prohibits dismissal of a woman worker while she is on maternity leave on any grounds whatsoever and also debars the giving of a notice of dismissal at such time that the notice would expire during her absence, the Committee invites the Government to examine the possibility of amending section 15(1)(a) of the Employment Ordinance in order to defer the entry into force of any dismissal of a woman worker or the notice of dismissal until the end of her maternity leave.

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The Committee notes the information provided by the Government in its first report for the Hong Kong Special Administrative Region and would be grateful to be provided with information on the points raised below.

1. Article 3(a) of the Convention. The Committee notes that, under the terms of section 12(1) and (2) of the Employment Ordinance, a female employee employed under a continuous contract shall be entitled to a continuous period of maternity leave of ten weeks. Furthermore, by virtue of section 12AA (1 and 2) of the Ordinance, a pregnant employee may, with the agreement of her employer, decide on the date of commencement of maternity leave, provided that such date is between the fourth and second week before the expected date of confinement; if the employee does not exercise the option to decide on the date of commencement of the leave or, if she fails to secure her employer’s agreement with regard to such date, the date of commencement of maternity leave shall be four weeks immediately before the expected date of confinement. The Committee therefore understands that during the period of six weeks following confinement the woman worker shall not be permitted to work, in accordance with Article 3(a) of the Convention. It would be grateful if the Government would confirm whether this is indeed the case.

2. Article 4. The Committee notes that under the terms of section 12(10) of the Employment Ordinance, the continuity of employment of a female employee shall not be treated as broken by her taking maternity leave. It also notes that section 15(1)(a) of the above text was amended on 12 April 2001, and now provides that after a pregnant employee has served notice of pregnancy on her employer, the employer shall not terminate her continuous contract of employment otherwise than in accordance with section 9 of the Employment Ordinance, respecting termination of contract without notice, during that period and up to the date on which she is due to return to work. While being fully aware of the fact that the protection period against dismissal afforded by the Employment Ordinance is longer than that envisaged by the Convention, in so far as it covers the period between the date of notification of pregnancy until the return to work following maternity leave, the Committee wishes to recall that Article 4 of the Convention provides that, where a woman is absent from her work on maternity leave or remains absent for a longer period as a result of illness medically certified to arise out of pregnancy or confinement and rendering her unfit for work, it shall not be lawful for her employer to give her notice of dismissal during such absence, nor to give her notice of dismissal at such time that the notice would expire during such absence. The Committee therefore requests the Government to indicate whether in practice a woman worker may be given notice of dismissal for the reasons set out in section 9 of the Employment Ordinance while she is on maternity leave.

3. (a) The Committee also notes with interest that, under the terms of section 12 of the Employment Ordinance, as amended in 1997, read in conjunction with section 3 and the First Schedule to the above Ordinance, which define a continuous contract, a woman worker who has been in continuous employment for at least four weeks is entitled to maternity leave. In view of the fact that point 2(i) of the declaration of application with modifications communicated by China still makes the granting of maternity leave conditional upon the existence of a continuous contract for not less than 26 weeks, the Committee takes the opportunity of suggesting to the Government that it might examine the possibility of amending this point of the declaration of application in order to take into account the amendments made to the Employment Ordinance.

(b) The Committee notes with interest the Government’s statement in its report that, since 1997, both the Employment Ordinance and Civil Service Regulation No. 1297 no longer make entitlement to maternity leave conditional upon the number of children of the woman worker. In these conditions, it wishes to suggest that the Government might examine the possibility of deleting point 3(i)(b) of the declaration of application with modifications, which still indicates that under the terms of the Employment Ordinance, maternity leave pay is provided for a female employee if she has no more than two children born to her at the time she gives notice of her intention to take maternity leave, and also to modify point 3(ii) of the above declaration, which contains a similar restriction for female officers in the civil service with more than three children.