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

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

normal'>(notification: 1997)

Article 1 of the Convention. New developments. The Committee notes that a new Quality Migrant Admission Scheme was implemented as of 28 June 2006 to attract highly skilled or talented people from mainland China and overseas. Persons admitted under the scheme will be allowed to stay an initial period of one year without having first secured an offer of employment. To obtain an extension, the worker will have to demonstrate that he or she has taken steps to settle in the Hong Kong Special Administrative Region, China, by taking up a residence or by securing gainful employment. Please provide further information, disaggregated by sex and nationality, on the number of persons that have been admitted under the Quality Migrant Admission Scheme. Please also indicate the relevant legislation covering these workers with respect to the matters covered by the Convention, and in particular Articles 6 and 8 of the Convention.

Article 6(1)(a)(i). Equal treatment with respect to conditions of work. With respect to its previous comments regarding the vulnerability of foreign domestic workers to physical, mental and sexual abuse and violations of their standard employment contract, the Committee notes the many activities carried out by the Government to promote a better understanding and increase awareness among foreign domestic workers as well as relevant government officials, employers’ associations and workers’ groups of the rights and obligations of foreign domestic workers, including the participation of government officials in pre-departure workshops in Indonesia and the Philippines for prospective domestic workers. The Committee notes that from 1 June 2004 to 31 May 2007, the Labour Department has handled 5,463 claims (other than alleged underpayment of wages) from “imported” and foreign domestic workers concerning alleged breaches of the Employment Ordinance (EO) (Chapter 57) or standard employment contracts; 1,750 of these cases were referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board. Please continue to provide information on the measures taken to prevent abuse and discrimination of foreign domestic workers as well as on the number and nature of the complaints submitted, the penalties imposed and the remedies provided, with an indication of how many of these claims related to cases of physical, mental and sexual abuse and how many to violations of standard employment contracts. Given that due to fear of reprisals certain foreign domestic workers facing abuse may encounter additional difficulties in filing complaints, please also indicate whether any measures have been taken to ensure that the available complaints procedures are easily accessible for these workers.

Article 6(1)(b). Equality of treatment with respect to social security. Standard employment contracts. Further to its observation, the Committee notes the information provided by the Government on the complaints and reconciliation procedures of which “imported” workers and foreign domestic workers can avail themselves in the case of non-compliance with the social security provisions in the standard employment contract. The Committee notes that in the case of the employer failing to pay an award made by the Labour Tribunal or the Minor Employment Claims Adjudication Board, the “imported” worker or the foreign domestic worker may apply to the district court to enforce the award. Where the employer is insolvent, the “imported” worker will be referred to the Legal Aid Department and can apply for an ex-gratia payment from the Protection of Wages on Insolvency Fund. The Committee asks the Government to continue to provide information on the number of claims submitted by imported workers and foreign domestic workers concerning non-compliance of social security provisions of the Employment Order and the standard employment contract handled by the Labour Department, the Labour Tribunal or the Minor Employment Claims Adjudication Board. Please also provide information on the remedies provided.

Invalidity and old age. The Committee notes that the rationale for exempting both local and foreign domestic helpers from the application of the Mandatory Provident Fund Schemes Ordinance (Chapter 485), which provides for an employment-based retirement protection system is due to the anticipated administrative difficulties in ensuring compliance and enforcement, including the inconvenience caused to families in their residential premises. The Committee wishes to point out that depriving certain categories of migrant workers of the right to equal treatment invoking administrative difficulties relating to compliance or enforcement would not be acceptable within the meaning of the Convention. While noting that both nationals as well as foreign domestic workers are being excluded, the Committee recalls that foreign domestic workers constitute over 80 per cent of the persons admitted for employment in the Hong Kong Special Administrative Region, China. The Committee therefore asks the Government to re-examine the situation with a view to taking measures to extend old-age benefits to domestic workers.  Please also indicate whether persons admitted under the new Quality Migrant Workers Scheme are covered by the Mandatory Provident Fund Schemes Ordinance (Chapter 485).

The Committee further notes that migrant workers are excluded from the Social Security Allowance (SSA) Scheme and the Comprehensive Social Security Assistance (CSSA) Scheme, which are non-contributory and payable wholly out of public funds. However, if they have been employed in the Hong Kong Special Administrative Region, China, for not less than a month and become wholly or partially incapacitated for work by reason of age, sickness or disablement, they may apply for the Brewin Trust Fund. Noting further that the Criminal and Law Enforcement Injuries Compensation Scheme, the Traffic Accident Victims Scheme and the Emergency Relief Fund provide assistance to persons, including immigrants, who meet the eligibility criteria irrespective of the length of residence, the Committee asks the Government to provide further details on the eligibility criteria for these schemes and fund. Please also indicate whether persons admitted under the new Quality Migrant Workers Scheme are covered by these schemes and funds.

Equality of treatment. Family responsibilities. The Committee reiterates its requests for information on the qualifying conditions and circumstances allowing the different categories of migrants to benefit from family and child care support.

Practical application. Please continue to provide statistical information, disaggregated by sex and nationality, on the number of persons admitted for employment under the categories of foreign professionals, domestic workers, and workers under the supplementary labour scheme as well as under the new Quality Migrant Admission Scheme.

[The Government is asked to reply in detail to the present comments in 2010.]