Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Migration for Employment Convention (Revised), 1949 (No. 97) - China - Hong Kong Special Administrative Region (Ratification: 1997)

1. Article 5(b) of the Convention. With reference to its previous comments on the medical services available to members of the migrant worker’s family, the Committee notes the explanations by the Government that imported workers and foreign domestic workers are not allowed to bring their family members. When they apply to enter Hong Kong SAR as visitors, they will be subject to the rules applicable to visitors if in need of medical attention. However, for those who genuinely lack the means for obtaining medical services, the Social Welfare Department of the Hospital Authority has the discretion to waive the fees and charges.

2. Article 6(1). Equality of treatment. In its previous observation, the Committee had requested information on the practical application of the possibility for foreign domestic workers to apply for an extension of stay in Hong Kong SAR after the expiration of the two weeks after termination of their contract, a rule, which in the views of the Indonesian Migrant Workers Union (IMWU) and the Asian Domestic Workers Union (ADWU) was discriminatory. The Committee notes that during the reporting period all of the 9,898 applications for extensions of stay because of civil or criminal proceedings from the foreign domestic helpers were approved. Moreover, from October 2003 to May 2004, 10,389 applications were approved to change employer without returning to the home country. The Committee asks the Government to continue to provide information on the number of applications submitted to extend stay in Hong Kong or to change employers and the reasons for refusal, if any.

3. Article 6(1)(b). Equality of treatment with regard to invalidity and old-age. The Committee notes that all employers and workers in Hong Kong SAR are subject to the Mandatory Provident Fund (MPF) Schemes Ordinance (Chapter 485) which provides for an employment-based retirement protection system. However, it also notes the Government’s statement that migrant workers who enter the country for less than 13 months, those who are covered by overseas retirement schemes and foreign and local domestic workers are exempted from the scheme, but that there is no distinction between nationals and imported workers as regards old-age protection. Given the high numbers of foreign domestic workers employed in Hong Kong SAR - 219,058 foreign domestic workers as compared to only 893 imported workers and 49,838 professionals, in 2004 - the Committee asks the Government to indicate the reasons for exempting domestic workers from the application of the MPF schemes and whether it has any intention to provide in future old-age protection for these workers. With respect to disability, the Committee notes that the Social Security Allowance (SSA) Scheme provides financial assistance to severely disabled and the elderly aged 65 or above to meet the special needs arising from disability or old-age. The Comprehensive Social Security Assistance (CSSA) Scheme provides a safety net for those who cannot support themselves financially. Both schemes are non-contributory and are offered to persons meeting specific residence requirements and other qualifying conditions. The Committee asks the Government to indicate the conditions under which the different categories of migrant workers can be covered by the SSA and CSSA schemes.

4. Equality of treatment - family responsibilities. The Committee notes from the Government’s report that family and childcare support services are available to all persons meeting qualifying conditions or if their circumstances warrant. Please indicate the qualifying conditions and circumstances allowing the different categories of migrant workers to benefit from family and child care support services.

5. Article 11. The Committee notes the Government’s explanation that the labour legislation of Hong Kong SAR applies to all legally employed local and immigrant workers and that no persons are classified as "frontier workers" for the purpose of the application of the Convention. The Committee understands this to mean that there is no special regime applying to frontier workers i.e. living on one side of the border and working in Hong Kong SAR.

6. Parts IV and V of the report form. Practical application and statistics. The Committee notes the statistical data on the numbers of the immigrants admitted to the main categories of employment and asks the Government to indicate in its next report the number of male and female migrant workers employed in the different occupations under each category. The Committee also notes with interest that a new unit has been set up by the Labour Department in 2002 to investigate complaints on violations of the Employment Ordinance speedily, and that a special task force was created comprising representatives of the Labour Department, the Immigration Department and the Police to tackle alleged cases of underpayment of wages of foreign domestic helpers and malpractices of employment agencies. It asks the Government to provide information on the number and nature of complaints lodged by migrant workers and the malpractices by employment agencies detected as well as the penalties imposed and remedies provided.