Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the communication of the International Trade Union Confederation (ITUC), and the Government’s response thereto.

The Committee notes from the Government’s report that as of 31 May 2010, there were 60,642 foreign professionals, 276,737 foreign domestic workers (4,331 men and 272,406 women), and 1,653 “imported workers” (i.e. workers from mainland China or other countries imported under the Supplementary Labour Scheme (SLS)) in the Hong Kong Special Administrative Region, China (SAR). Half of the number of female domestic workers originate from Indonesia while 47.5 per cent originate from the Philippines. Almost 80 per cent of the male domestic workers originate from the Philippines. Other foreign domestic workers mainly come from Thailand, India and Sri Lanka.

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 of the Constitution). Since 2003, the Committee has engaged in a dialogue with the Government on the application of Article 6 of the Convention, in particular in the context of the follow-up to the recommendations of the Governing Body at its 288th Session (November 2003) on a representation made by the Trade Union Congress of the Philippines under article 24 of the ILO Constitution alleging non-observance by China of the Convention with respect to Hong Kong SAR. In this connection, the Committee had welcomed the measures by the Government to suspend, until 31 July 2013, the obligation for employers of “all imported labour” including foreign domestic workers, to pay the employees retraining levy (ERL) of 400 Hong Kong dollars (HKD) and the subsequent increases of the minimum allowable wage (MAW) of foreign domestic workers. With regard to the impact of the levy suspension on pre-existing contracts (before 1 August 2008) and wages of domestic workers, the Committee notes the Government’s indication that employers are required to inform the Department of Immigration about any termination of contracts, without having to provide the reasons for such termination. The Government, however, states that the number of cases of premature termination of employment contracts does not indicate any significant changes following the implementation of the levy suspension arrangement. With regard to claims of underpayment by foreign domestic workers, the Committee notes from the Government’s report that between 1 June 2007 and 31 March 2010, 1,036 complaints were submitted to the Labour Department. Of those cases, 59 were settled with the assistance of the Labour Department and 506 were subsequently referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board (MECAB). In the remaining cases, the foreign domestic worker was granted ex gratia payments from the Protection of Wages on Insolvency Fund (PWIF) due to bankruptcy of the employer. During this period, the Labour Department also issued 398 summonses involving underpayment of wages or other breaches of the Employment Ordinance by employers of immigrant workers (including foreign domestic workers), 247 of them resulting in conviction. The Committee further notes the Government’s confirmation that the policy that operating expenses of the Employees Retraining Board, which is responsible for training and retraining of local workers, should primarily be met by the ERL remains unchanged. Noting that, in practice, this would mean that the ERL is primarily borne by employers of foreign domestic workers, representing 99 per cent of the “imported” labour in Hong Kong SAR, the Committee remains concerned about the potential disproportionate impact of the levy policy on wages of foreign domestic workers, once it again becomes operational. The Committee therefore asks the Government to continue to monitor the situation closely and to provide information on the measures taken or envisaged to ensure that the ERL is not having a disproportionate impact on the wages of foreign domestic workers, once the levy suspension expires (as of 31 July 2013). The Committee also asks the Government to continue to provide information, disaggregated by sex and country of origin, on the number of underpayment claims submitted by foreign domestic workers to the Labour Department, the Labour Tribunal and the Minor Employment Claims Adjudication Board, and their outcome for both workers and employers.

Article 6(1). Equality of treatment. The Committee notes that the monthly MAW for foreign domestic workers has been increased to HKD3,740, effective 2 June 2011. It also notes the adoption of the Minimum Wage Ordinance No. 15 of 2010 which does not apply to “a person who is employed as a domestic worker in, or in connection with, a household and who dwells in the household free of charge” (section 7(2)). The Committee understands that the reasons given by the Legislative Council for advising that live-in domestic workers be excluded from the scope of the Ordinance were: (a) their distinctive working patterns; (b) enjoyment of benefits in kind; (c) significant socio-economic ramifications; and (d) the fundamental erosion of the policy on foreign domestic workers. The Committee notes that “distinctive working patterns” is meant to cover “round-the-clock work” and “providing service on demand”. The Committee notes that the Minimum Wage Ordinance excludes both local and foreign live-in domestic workers and that according to the latest available statistics, the number of local live-in domestic workers totalled 1,400 in 2006 (Population by census conducted by the Census and Statistics Department) compared to 276,737 foreign domestic workers, of whom 98 per cent are women (2010 data). No information is provided on the number and wages of local live-out domestic workers.

The Committee recalls that, unlike local domestic workers or other foreign workers, foreign domestic workers are obliged to reside with the employer (paragraph 3 of the standard employment contract). The Committee notes that, in this context, ITUC draws attention to the vulnerability of foreign domestic workers, particularly those of Indonesian and Nepali origin, to violations of their statutory rights and employment contracts, including denial of rest days, excessive working hours (average of 16 hours a day), and sexual and physical abuse. ITUC calls on the Government to legislate hours of work, including standby hours, of domestic workers, and to conduct a survey on wage inequalities between local and foreign workers, as recommended by the Governing Body in 2003. ITUC is further concerned that the rule requiring foreign domestic workers to leave Hong Kong SAR, within two weeks of the expiration or premature termination of their employment contract drives foreign domestic workers to remain in or access new employment in abusive conditions. Furthermore, ITUC draws attention to the discriminatory nature of the immigration rules (section 4(a)(vi) of the Immigration Ordinance) specifically preventing foreign domestic workers (primarily women) from being eligible to seek permanent residence. With regard to the two-week rule, the Committee previously noted that the rule was exercised with flexibility and that applications for extensions of stay because of civil or criminal proceedings were generally approved, and that in a number of cases applications had been approved to change employer without returning to the home country. With regard to residency, the Committee understands that a Court of first instance ruled on 30 September 2011 that prohibiting foreign domestic workers from acquiring permanent residency was unconstitutional, but that the Government may have challenged the ruling in the Court of Appeal. The Committee notes the Government’s reply that it will study the allegations made by ITUC and, if required, provide additional information regarding the application of the Convention. Noting the Government’s commitment to protecting the well-being of its workforce, including foreign domestic workers, the Committee asks the Government to monitor closely whether its overall policy on foreign domestic workers (live-in requirement, wage policy, two-week rule and restrictions on permanent residency) is not in practice leading to less favourable treatment of foreign domestic workers with respect to the matters raised in Article 6(1)(a)–(d) of the Convention, and to provide detailed information on the measures taken in this regard. This should include steps to undertake research on wage inequalities and hours of work between local and foreign workers so as to verify whether the abovementioned reasons for exclusion are justified and do not lead to less favourable treatment. The Committee further asks the Government to provide information on the following:

• (i) the measures taken to address the particular vulnerability of domestic workers including Indonesian and Nepali workers, to discriminatory treatment in respect of their wages, and steps taken or envisaged to legislate hours of work of domestic workers;
• (ii) the number of applications for extension of stay beyond the permissible two weeks due to legal proceedings and the number of applications to change employer, and the reasons for any refusals by the Immigration Department;
• (iii) a copy of the Court of first instance’s decision and of the decision of the Court of Appeal, if any, regarding the unconstitutionality of the prohibition for domestic workers to apply for permanent residency, and the outcome of the decisions and their impact on the application of the Convention to foreign domestic workers.

Enforcement. The Committee notes ITUC’s comments indicating that the Government is not effectively monitoring conditions of work contrary to Article 6 of the Convention and that long proceedings combined with the fear of deportation results in many domestic workers being discouraged from filing a complaint. ITUC also raises concerns that the prohibition of foreign domestic workers who have filed a complaint and prematurely terminated their contracts to take up employment during the remaining time of their stay, has resulted in workers withdrawing their complaints or accepting lower settlements. The Committee notes the Government’s reply that foreign domestic workers can access the range of free services (consultation and conciliation) provided by the Labour Department with branch offices located in various districts to resolve disputes with their employers, and can seek redress though the legal system, including provision of legal aid as long as the eligibility criteria, which are applicable to all, are met. The Committee also notes that the Government has taken measures to prevent abusive treatment of foreign domestic workers through various educational and information activities, and a 24-hour telephone inquiry service about rights and benefits under the Employment Ordinance and the standard employment contract. The Government further indicates that between 1 June 2007 and 31 May 2010 the Labour Department handled 7,082 claims from “imported workers” and foreign domestic workers concerning alleged breaches of the Employment Ordinance or the standard employment contract by their employers (other than the alleged underpayment cases referred to above). Of the cases that could not be settled by the Labour Department’s conciliatory efforts, 1,995 were subsequently referred to the Labour Tribunal or MECAB. Regarding claims from domestic workers relating to abuse by their employers in relation to race, indecent assault as well as wounding and serious assault, there were 291 reported cases. No further information has been provided on the outcome of these cases, including the remedies provided for victims. The Committee asks the Government to provide information on the measures taken or envisaged to further strengthen the inspection and enforcement of the rights of foreign domestic workers under the Employment Ordinance and the standard employment contract, and to ensure that migrant workers who have applied for an extension of their stay due to legal proceedings have access to effective and speedy dispute resolution. The Committee also asks the Government to continue to provide information on the number and nature of claims submitted by foreign domestic workers for violations of the relevant laws and regulations and the standard employment contract, including indications as to their outcome for both workers and employers.

The Committee is raising other points in a request addressed directly to the Government.