Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Labour Inspection Convention, 1947 (No. 81) - China - Hong Kong Special Administrative Region (Ratification: 1997)

style='font-weight:normal'>(notification: 1997)

The Committee notes the annual report of the Labour Department for 2008 which contains detailed information and figures on labour inspection activities and results.

Articles 3 and 17 of the Convention. Additional functions entrusted to labour inspectors. The Committee’s previous comments concerned the need to ensure that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allow them to arrest workers on the grounds of their illegal residence situation.

The Committee notes the Government’s response to the effect that the primary duty of the labour inspectors in the Hong Kong SAR has been and will continue to be the enforcement of legislative provisions relating to the conditions of work and protection of workers; the number of joint operations between labour inspectors, the police and the immigration department was relatively small compared to the total number of workplace inspections for 2008 and 2009: 186 and 217 joint operations compared to 132,525 and 139,718 inspections in 2008 and 2009 respectively. The Committee notes from the 2008 Labour Department Annual Report, however, that in addition to the collaboration of the labour inspectors in joint operations, most workplace inspections (131,835 out of 132,525 in 2008) include a control of employees’ proof of identity and employee records to deter irregular employment. It also notes that there is no information in the Annual Report on the results of the workplace inspections or the joint operations in terms of possible arrests and imprisonment of foreign workers who did not possess the necessary residence authorization. According to the Government, the participation of labour inspectors in enforcement actions against irregular employment serves to safeguard the rights and benefits of all workers, given that undocumented workers are often provided with less favourable working conditions due to their vulnerable status, and their recruitment could therefore lead to a generalized lowering of terms and conditions of work if not combated. The principal role of labour inspectors in the joint operations is to collect sufficient evidence on the irregular employment activities for the ultimate purpose of securing the successful prosecution of the unscrupulous employers. Labour inspectors have no power of arrest; the arrest of the undocumented workers and their employers during joint operations and the subsequent investigation for the suspected offences of irregular employment are carried out by the police force or the immigration department.

The Committee recalls that the role of the labour inspectorate, pursuant to the provisions of the Convention, is in principle to monitor not the legality of the employment relationship but the conditions in which the work is performed. In paragraph 77 of its General Survey of 2006 on labour inspection, the Committee recalled that neither Convention No. 81 nor the Labour Inspection (Agriculture) Convention, 1969 (No. 129), contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. In paragraph 161 of the abovementioned General Survey, the Committee observed that, in view of the growing numbers of foreign and migrant workers in many countries, the labour inspectorate is often asked to cooperate with the immigration authorities and that such cooperation should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions. In this respect, it should be emphasized that the expression “while engaged in their work” used in Article 3(1)(a), of the Convention indicates that the protection afforded by the labour inspection must be provided to all workers for the period of their employment relationship; in order to remain in conformity with the purpose of their duties, the action taken by inspectors should enable the implementation of legal proceedings against employers guilty of contraventions, entailing not only the imposition of adequate penalties in accordance with the various categories of contraventions, but also the requirement to pay any outstanding sums owed to the workers concerned for the actual duration of their period of employment. The Committee considers that the financial consequences (fines and settlement of outstanding wages) resulting from the actions of the labour inspectorate, can constitute an effective deterrent against the employment of persons in an irregular situation with regard to labour legislation. In any case, a role for the labour inspectorate consisting of assisting the police and immigration authorities to target workers suspected of being “illegal” is in total contradiction with the protective function entrusted to labour inspectors by the Convention.

The Committee therefore once again urges the Government to take the necessary measures as soon as possible to ensure that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allows them to arrest workers on the grounds of their irregular residence situation. The Government is also asked to ensure that the collaboration of labour inspection officers with the said authorities is limited to legal proceedings against employers found to be in violation of the legal provisions relating to conditions of work, and the protection of workers while engaged in their work, and to inform the ILO of the action taken to this end and the results achieved.