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

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

The Committee notes the Government’s report in reply to the request made by the Conference Committee on the Application of Standards in June 2012. It also notes the joint observations, dated 31 August 2012, of the Hong Kong Confederation of Trade Unions (HKCTU) and the Hong Kong Federation of Asian Domestic Workers Union (FADWU), which were sent to the Government for its comments.

Statistics. The Committee notes from the Government’s report that as of 31 May 2012, there were in the Hong Kong Special Administrative Region (SAR) 58,974 foreign professionals, 307,151 foreign domestic workers (4,771 men and 302,380 women), and 3,452 immigrant workers entering under the Supplementary Labour Scheme (SLS) (largely from mainland China). As of 31 May 2012, 2,216 applicants also entered under the Quality Migrant Admission Scheme with 1,713 applicants from mainland China and other applicants coming mainly from Asia Pacific, Europe and North America. The large majority of the domestic workers are from Indonesia (143 men and 151,852 women) and the Philippines (3,835 men and 144,096 women). Other foreign domestic workers are from India (460 men and 1,932 women), Sri Lanka (136 men and 819 women) and Thailand (38 men and 3,155 women); 685 domestic workers (159 men and 526 women) originate from “other countries”. The Committee notes from the communication of HKCTU and FADWU that migrant domestic workers also come from Nepal. The Committee requests the Government to continue to provide statistical data, disaggregated by sex and country of origin, as well as sector of employment, on the number of migrant workers in Hong Kong SAR.

Article 2 of the Convention. Information and services for migrant workers. The Committee previously noted the Government’s efforts to provide migrant workers access free of charge to all of the services provided by the Government, including a telephone inquiry service, consultation and conciliation services, and interpretation services. Information about rights and benefits under the applicable legislation and the individual employment contract as well as on the relevant complaints mechanisms is also being provided free of charge through various media, including publications and brochures in several languages. The Committee notes that HKCTU and FADWU point to some difficulties regarding the provision of these services to migrant workers, including the functioning of the telephone inquiry service, and the need for effective measures to ensure that the contents of the standard employment contract are understood fully by all migrant workers. They also recommend that interpretation services be provided when migrant workers want to file a complaint with the Labour Department. The Committee asks the Government to indicate the measures taken to ensure that migrant workers are able to benefit effectively from the services, including interpretation services, and information provided to them, and whether any additional steps are being taken to ensure that migrant workers have a clear understanding of the contents of their employment contract.

Article 6(1)(a)(i). Equality of treatment of foreign domestic workers with respect to remuneration and conditions of work. For a number of years, the Committee has been following up on the impact of measures taken by the Government to increase the monthly minimum allowable wage (MAW) of foreign domestic workers, after its reduction by HK$400 in 2002, and the suspension until 31 July 2013 of the obligation for employers of all immigrant workers to pay an Employee Retraining Levy (ERL) of HK$400. The Committee notes from the Government’s report that from 1 June 2010 to 31 May 2012, 5 per cent (342 cases) of the total number of claims from foreign domestic workers lodged with the Labour Department involved underpayment of wages; of these, 150 cases were settled through conciliation while the remaining 192 cases were referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board for adjudication. Noting that the suspension of the ERL expires in July 2013, the Committee asks the Government to provide information on any measures taken or envisaged to ensure that the ERL is not having a disproportionate impact on the wages of foreign domestic workers, once the ERL again becomes operational.

Minimum wages. The Committee notes that HKCTU and FADWU are of the view that when taking into consideration the rate of inflation in Hong Kong SAR, the monthly MAW of migrant domestic workers has increased only very little compared to the level in 2002 (HK$3,670), before the ERL was introduced. The Committee notes that for employment contracts signed by parties starting 20 September 2012, an increased monthly MAW of HK$3,920 and food allowance of HK$875 shall apply. Workers with contracts before that date will be entitled only to the previous monthly MAW and food allowance. The Committee recalls its previous observation in which it noted that section 7(2) of the Minimum Wage Ordinance (MWO) No. 15 of 2010 excluded in practice all foreign domestic workers due to the mandatory live-in requirement (paragraph 3 of the standard employment contract). The Committee also noted that the hourly statutory minimum wage under the MWO was set at HK$28. The Committee notes the Government’s reply that the remuneration package of foreign domestic workers includes, beyond the MAW, a range of in-kind benefits which are not available to non-live-in workers, including free accommodation and a food allowance. The Committee notes however that HKCTU and FADWU refer to alleged reports of sub-standard accommodation and express concerns at the lack of a mechanism in place to measure or calculate the costs of accommodation. The Committee recalls that one of the reasons given at the time by the Legislative Council to exclude live-in domestic workers from the MWO was their distinctive working patterns (around-the-clock work) and the difficulty in keeping a record of hours of work and calculating wages accordingly. The Committee takes due note of the Government’s explanation that the remuneration package of domestic workers includes additional benefits in kind but draws the Government’s attention to the fact that while the treatment applied by the State to migrant workers does not have to be identical to that enjoyed by nationals, it should nonetheless be equivalent in its effects (General Survey on migrant workers, 1999, paragraph 371). Bearing in mind the particular working conditions of foreign domestic workers, who constitute the overwhelming majority of the migrant workers in Hong Kong SAR, and who are primarily women, the Committee considers that an in-depth review of the working conditions and remuneration of these workers is required so as to determine whether or not in practice, female foreign domestic workers are subject to discrimination based on sex or nationality and to less favourable treatment than that applied to nationals and other categories of migrant workers with regard to remuneration. The Committee therefore requests the Government to take steps to examine, in consultation with workers’ and employers’ organizations, existing inequalities in the remuneration package between local and foreign workers arising from the applicable laws and regulations concerning foreign domestic workers so as to verify that no less favourable treatment is being applied to foreign domestic workers than to nationals, and to report on the results achieved. The Committee also requests the Government to clarify the reasons for applying the new MAW and food allowance only to contracts signed as of 20 September 2012, and to clarify how the cost of accommodation for live-in workers is being calculated.

Conditions of work. The Committee previously noted that one of the underlying reasons to exclude live-in domestic workers from the scope of the MWO included the fundamental erosion of the policy on foreign domestic workers if standard working hours would be prescribed and the live-in requirement removed. The Committee recalls the concerns expressed by the International Trade Union Confederation (ITUC) regarding the particular vulnerability of certain groups of foreign domestic workers, especially 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. The Committee notes that the Government’s report merely states that during the reporting period, 128 reports of claims of foreign domestic workers regarding abuse by employers including rape, indecent assault as well as wounding and serious assault were handled by the police according to the laws of Hong Kong, without providing further information regarding the outcome of these claims for both domestic workers and employers. The Committee further notes the observations of HKCTU and FADWU regarding alleged abuses relating to conditions of work of immigrant workers who entered Hong Kong SAR under the Supplementary Labour Scheme to the extent that they fall within the scope of the definition of migrant for employment set out in Article 11 of the Convention. The Committee requests the Government to indicate the measures taken or envisaged to ensure the effective monitoring by the competent authorities of the working conditions of foreign domestic workers, and whether any consideration has been given to examining the working patterns of foreign domestic workers with a view to ensuring that no less favourable treatment is applied to them as compared to nationals and other migrant workers with respect to conditions of work.

Article 6(1)(d) and Parts III and IV of the report form. Enforcement. The Committee notes that from 1 June 2010 to 31 May 2012 the Labour Department handled 6,726 claims from foreign domestic workers concerning alleged breaches of the Employment Ordinance or the terms of the Standard Employment Contract by their employers; of the cases that could not be settled by the Labour Department’s conciliation efforts, 1,792 were subsequently referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board for adjudication. The Labour Department also issued 236 summonses involving underpayment of wages or other breaches of the Employment Ordinance by employers of migrant workers (including 233 summonses against employers of foreign domestic workers). During the same period, the Immigration Department prosecuted 61 employers for aiding and abetting foreign domestic workers to breach their conditions of stay by taking up illegal employment. The Committee had previously noted concerns 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 (“two-week rule”) drove workers to remain in or to access new employment in abusive conditions. The Committee notes that for the period under review, 56,402 applications of foreign domestic workers to change workplace were approved, while 372 cases were refused, largely due to the applicants’ failure to meet the criteria for change of employment. During the same period, all 10,050 applications for extension of stay from foreign domestic workers to pursue civil or criminal proceedings were approved. In this regard, the Committee notes that the HKCTU and FADWU reiterate concerns regarding the length of the proceedings which, combined with the fear of deportation, resulted in many domestic workers being discouraged from filing a complaint; the prohibition of foreign domestic workers taking up employment during the remaining time of their stay also resulted in workers withdrawing complaints or accepting lower settlements due to the high costs involved. The Committee notes the Government’s statement that all complaints lodged will be promptly investigated and prosecution instituted when there is sufficient evidence and the foreign domestic worker is willing to act as a prosecution witness. The Committee requests the Government to examine the difficulties encountered by foreign domestic workers in processing their claims on an equal footing with nationals in accordance with Article 6(1)(d) of the Convention, and to provide information on the results achieved. The Committee also asks the Government to provide information on any additional 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 so as to reduce costs incurred during the period that the legal proceedings are pending. Please continue to provide information on 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. The Committee also asks the Government to continue to provide information on the number and nature of claims, including underpayment claims, submitted by foreign domestic workers and other migrant workers under the Supplementary Labour Scheme to the Labour Department, the Labour Tribunal and the Minor Employment Claims Adjudication Board, and their outcome for both workers and employers, relating to violations of the relevant laws and regulations and the Standard Employment Contract.

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

[The Government is asked to reply in detail to the present comments in 2014.]