CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

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.

CMNT_TITLE

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.