Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Articles 3(1) and (2) and 17 of the Convention. Additional functions entrusted to labour inspectors. The Committee notes with interest from the Government’s report that 26 posts of labour inspectors were created in 2011 to strengthen enforcement of labour legislation on conditions of employment. It also notes from the annual report of the Labour Department for 2010 the priority placed on preventive and enforcement action to ensure timely wage payment. The Committee notes however with concern, from the Government’s report, that labour inspectors continue to be involved in joint operations which, by granting the police and immigration authorities access to workplaces, allow the latter to arrest workers on the grounds of their “illegal” residence situation.

The Government indicates that the number of joint operations has been relatively small compared to the total number of workplace inspections (217 and 193 joint operations compared to 140,267 and 138,395 inspections in 2010 and 2011, respectively), and that the role of labour inspectors in this framework is to collect intelligence and evidence on suspected “illegal” employment activities for the ultimate purpose of protecting the rights and benefits of workers and securing convictions against unscrupulous employers. According to the Government’s report, as a result of stringent enforcement actions, the Labour Department secured a total of 4,397 convictions under different provisions of the Employment Ordinance, Chapter 57, in 2010 and 2011.

The Committee recalls once again, with reference to its previous comments, that 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 and is not conducive to the relationship of trust needed to create the climate of confidence that is essential to enlisting the cooperation of employers and workers with labour inspectors. It must be possible for inspectors to be respected for their authority to report offences, and at the same time to be approachable as preventers and advisers. The Committee therefore once again urges the Government to take the necessary measures as soon as possible to dissociate the functions of enforcing immigration law from those of controlling the observance of workers’ rights by ensuring that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allows the latter to arrest undocumented workers on the grounds of their irregular residence situation.

With reference to paragraph 78 of the 2006 General Survey on labour inspection, the Committee reminds the Government that, to be compatible with the protective function of labour inspection, the verification of the legality of employment by labour inspectors should have as its corollary the reinstatement of the statutory rights of all workers, including undocumented ones. This objective can only be met if the workers covered are convinced that the primary task for the labour inspectorate is to enforce the legal provisions relating to conditions of work and the protection of workers. The Committee requests the Government to indicate the manner in which the labour inspectorate ensures the discharge of employers’ obligations (notably payment of wages and other benefits owed for work done during the period of the effective employment relationship) with regard to undocumented workers in an irregular situation from the point of view of residence status, including in cases where such workers are liable to expulsion or have already been expelled by the immigration authorities. In this regard, the Committee would be grateful if the Government would provide more detailed information on legal proceedings instituted, and remedies and sanctions imposed on employers found to be in violation of the legal provisions relating to workers’ statutory rights including vis-à-vis undocumented foreign workers.

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