Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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

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.