Working mothers finally get a break

Hong Kong has increased minimum maternity leave for the first time in almost 40 years and now provides better protection for breastfeeding women, but it still has ground to make up on these important issues. Boase Cohen & Collins Senior Associate Alice Cabrelli assesses the latest legislation.

Hong Kong, 21 July 2020: Earlier this month, the Legislative Council finally passed the Employment (Amendment) Bill 2019, thus increasing statutory maternity leave under the Employment Ordinance in Hong Kong from a meagre 10 weeks to 14 weeks. The additional maternity leave pay will be funded by the government and the subsidy limit is HK$80,000 per employee. However, it should be noted that the increase is not in force yet, it is expected to come into effect by the end of the year.

The 10 week maternity leave provision had been in place since 1981 and a change was long overdue. The International Labour Organisation, an agency of the United Nations, has a Maternity Protection Convention which has long advocated that 14 weeks should be the minimum for maternity leave to safeguard the health of both mother and child.

The increase in maternity leave had been announced by the Chief Executive in her October 2018 Policy Address but, sadly, it took a further 19 months to be passed (reasons for which would require a much lengthier article). Previously, Hong Kong’s maternity leave was among the shortest in Asia and fell far below the standard expected in “Asia’s World City”. Paternity leave remains woefully short.

The World Health Organisation recommends children should be exclusively breastfed for the first six months of their lives, a task which would be impossible for most working mothers returning to work after 10 weeks of maternity leave (particularly when bearing in mind that maternity leave is to start two weeks before the estimated due date and many babies are born after the due date, meaning that some mothers may have returned to work when their baby was only six weeks old).

Another recent change has been the passing of the Discrimination Legislation (Miscellaneous Amendments) Bill 2018 on 11 June 2020 – gazetted on 19 June 2020 as the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 – which includes amending the Sex Discrimination Ordinance to provide better protection for breastfeeding women in employment, provision of services and facilities, and education. The legislation follows recommendations made by the Equal Opportunities Commission four years ago.

Breastfeeding is now a protected characteristic and it is unlawful to directly or indirectly discriminate against breastfeeding women or to victimise them for breastfeeding. The definition of breastfeeding includes expressing of breast milk. However these provisions will only come into force on 19 June 2021.

While the increase in maternity leave and change to discrimination laws are a welcome development, there is still a lot of work to be done particularly when considering Hong Kong has one of the lowest fertility rates in the world and an ageing population.

It should be noted that LegCo has still failed to pass the Sex Discrimination (Amendment Bill) 2020 which would amend the Sex Discrimination Ordinance to provide protection from harassment for breastfeeding women. Many will recall the incident involving a taxi driver who posted a photo online of a mother breastfeeding in his taxi. He was initially arrested but subsequently the prosecution was dropped following a ruling from the Court of Final Appeal concerning accessing computers with criminal or dishonest intent (again this would require a lengthier article). As well, employers are still not obliged to offer lactation breaks or facilities and there is no practical guidance in the Code of Practice.

Boase Cohen & Collins, I’m happy to say, takes a thoroughly modern approach to these issues. My husband and I welcomed our first child in January 2020 and we have been extremely grateful for the firm’s support both during maternity leave and continuing after my return to work. I was provided with additional maternity leave over the statutory minimum period and am afforded breaks throughout the working day to express, allowing me to continue breastfeeding despite working full time.

This support is a reflection of BC&C’s record on gender equality – half our Partners and a large majority of our Senior Associates, Associates and Trainees are female, a situation which sharpens our focus on women’s rights and the ongoing fight against discrimination. We look forward to more employers – and the government – sharing our enlightened view.

Alice Cabrelli joined Boase Cohen & Collins eight years ago and became a Senior Associate in 2018. Her key areas of practice include Family Law, Divorce and Separation, Child Custody and Financial Applications, and Civil and Commercial Litigation. She can be contacted via alice@boasecohencollins.com.

Hong Kong is only just catching up with international standards concerning the rights of new mothers.