Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

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.