Right to Work

The respondent QT[1] is a British national.  She is homosexual and met her partner, SS, who has dual South African and British nationality, in 2004.  In May 2011, QT and SS entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004.

  SS was offered employment in Hong Kong and granted an employment visa to come and work here.  On 23 September 2011, the couple entered Hong Kong, SS on the strength of her employment visa and QT as a visitor.  Since their arrival in Hong Kong, SS’s employment visa has been extended from time to time as has QT’s visitor status.  As a visitor, QT is not permitted to work or study in Hong Kong and, unlike those who enter under a dependant visa, her period of stay may not qualify her for eventual permanent resident status.  The couple live in Hong Kong together and SS supports QT.  There is no dispute that their civil partnership is a genuine relationship and that they live together as a family.

After making unsuccessful applications for a dependant visa and also for an employment visa in her own right, on 29 January 2014 QT submitted the application for a dependant visa.

The Court of Final Appeal of the Hong Kong Special Administrative Region ruled that the Director has not justified the differential treatment against QT:

106.  The “core values” mentioned by Ma CJ are often referred to as the “suspect or prohibited grounds” identified in Art 22 of the Bill of Rights as including “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.[135] It is clear that discrimination on the ground of sexual orientation is included within this assemblage of suspect grounds, sexual orientation falling within the words “other status”.[136]

107.  Discrimination on any of those grounds is regarded as especially  pernicious because, as Lord Walker pointed out in Carson:[137]

    “They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim.”

108.  Accordingly, where a person is subjected to differential treatment on any of the suspect grounds, including sexual orientation, the government’s margin of discretion is much narrowed and the court will subject the impugned measure to “particularly severe scrutiny”.[138] That does not mean that the measure can never pass muster, but it will require the government to provide “very weighty reasons” or “particularly convincing and weighty reasons”[139] to justify the challenged difference in treatment, applying the standard of reasonable necessity.


This case came before the Supreme Court of India, on appeal, against a Bombay High Court verdict striking down the Maharashtra government’s statewide ban on dance performances in bars. The ban dates back to August 2005, and prohibited ‘any type of dancing' in an "eating house, permit room or beer bar", but made an exception for dance performances in three stars hotels and above, and other elite establishments. The State justified the ban by asserting that bar dancing corrupts morals, fuels trafficking and prostitution, and causes exploitation of women bar dancers. Due to the ban, 75,000 women workers became unemployed. Many did not have other marketable skills. Statistics show that 68 per cent of bar dancers were sole bread earners of their family. While a rehabilitation program was in place, it was not enforced. Unemployment and financial hardship forced several erstwhile women bar dancers to leave the state or resort to prostitution, while many committed suicide.
On July 16th, 2013, the Supreme Court, in a landmark decision, upheld the rights of bar dancers. The judgment affirmed the Bombay High Court decision which found that the prohibition on dancing violated the right to carry on one’s profession/occupation under Article 19(1)(g) of the Constitution, and that banning dances in some establishments while allowing them in others infringed upon the right to equality under Article 14 of the Constitution.

The Supreme Court noted that “The restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance…”  The decision excoriates the ban stating that the “cure is worse than the disease” given that contrary to its purpose, the ban resulted in many women being forced into prostitution. The Court urged that it would be more appropriate to bring about measures which ensure the safety and improve the working conditions of bar dancers.  Instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach.


A woman born into a “forward class” married a man belonging to a “backward class”. Under Indian law, states could make provisions for members of “backward classes” so as to diminish the equality gap, despite the Indian constitution’s protections against discrimination. The woman thus applied for a job based on her belonging to a “backward class” via marriage, even though she had grown up with all of the privileges that belonging to a “forward class” entails and none of those entailed by belonging to a “backward class”. She got the job. Another candidate challenged this. The Supreme Court, citing CEDAW and saying that “its principles are enforceable by operation of the Protection of Human Rights Act 1993”, ruled in favor of the challenger. It held that women from a “forward class” could not reap the benefits of such affirmative action programs by becoming members of a “backward class” by marriage.


The High Court of Fiji cited the ICESCR to guide its interpretation of the right to fair practices under the Constitution. The High Court then held that trade disputes between unions and employers could be adjudicated by courts in Fiji.

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Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents. The School hires both foreign and local teachers as members of its faculty, classifying the same into two: (1) foreign-hires and (2) local-hires. The School grants foreign-hires certain benefits not accorded local-hires. These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure. When negotiations for a new collective bargaining agreement were held on June 1995, petitioner International School Alliance of Educators, "a legitimate labor union and the collective bargaining representative of all faculty members"[4] of the School, contested the difference in salary rates between foreign and local-hires. This issue, as well as the question of whether foreign-hires should be included in the appropriate bargaining unit, eventually caused a deadlock between the parties.

Court ruling:

That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution[8] in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."

International law, which springs from general principles of law,[9] likewise proscribes discrimination. General principles of law include principles of equity,[10] i.e., the general principles of fairness and justice, based on the test of what is reasonable.[11] The Universal Declaration of Human Rights,[12] the International Covenant on Economic, Social, and Cultural Rights,[13] the International Convention on the Elimination of All Forms of Racial Discrimination,[14] the Convention against Discrimination in Education,[15] the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation[16] - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.

In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible.