Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the joint observations, received 31 August 2014, 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 thereon. It also notes the Government’s reply to those observations and to those previous observations made by the HKTCU and the FADWU.

Article 1 of the Convention. Recent developments. With reference to its previous comments, the Committee notes that on 25 March 2013, the Court of Final Appeal of the Hong Kong Special Administrative Region, China, dismissed the appeal lodged against the ruling of the Court of Appeal on the right to abode of foreign domestic workers, and held that section 2(4)(a)(vi) of the Immigration Ordinance, Chapter 115 of the Laws of Hong Kong, is consistent with article 24(2)(4) of the Basic Law of the Hong Kong Special Administrative Region, China. The Government indicates in its report that following this decision, the Immigration Department will continue to process visa applications from foreign domestic workers in accordance with the prevailing policy. The Committee further notes the Government’s indication that the Employee Retraining Levy (ERL), which had been imposed on employers of all immigrant workers since 2002, but suspended until 31 July 2013, has been abolished and that as of 14 May 2013 the immigration of foreign domestic workers was designated as a labour importation scheme under the Employment Retraining Ordinance, Chapter 423 of the Laws of Hong Kong. The Committee requests the Government to continue to provide information on any major legislative and policy measures concerning immigrant workers, in particular foreign domestic workers, giving effect to the provisions of the Convention. Please continue to provide statistical data, disaggregated by sex and nationality, where available, on the employment of all categories of immigrant workers, indicating the number of immigrant workers, including foreign domestic workers, residing in the Hong Kong Special Administrative Region, China, for more than seven years.

Article 2. Information and services for migrant workers. The Committee notes the Government’s sustained efforts to provide migrant workers with free access to government services, including the publication and distribution of practical guides, brochures and awareness-raising materials in several languages addressed to foreign domestic workers and their employers. It also notes the Government’s efforts in educating and raising awareness of employers regarding their obligations towards foreign domestic workers. The Government also organizes free translation services and the Labour Department has launched a series of publicity programmes and is distributing leaflets and posters in several languages. Noting the HKCTU and the FADWU’s concerns that these services and information materials may not be fully accessible to all migrant workers, and that employment contracts are only available in English and Chinese, the Committee encourages the Government to continue its efforts to ensure that migrant workers are able to benefit effectively from the free services provided, including interpretation services and information on rights and obligations, and have a clear understanding of the content of their employment contract. Please provide information on any further measures taken or obstacles encountered in this regard.

Article 3. Misleading propaganda. The HKCTU and the FADWU reiterate concerns regarding non-compliance of the Employment Agency Regulations, Chapter 57A of the Laws of Hong Kong leading to excessive agency fees deducted from workers’ salaries, and allegations of migrant workers having to sign unknown or false documents in this regard. The Committee notes the information provided by the Government on the measures taken to regulate employment agencies and the inspections conducted by the Labour Department, including with respect to agency fees, as well as on the cooperation undertaken with countries of origin. The Committee requests the Government to continue to take measures to ensure that migrant workers are not victims of misleading propaganda relating to immigration to the Hong Kong Special Administrative Region, China, including with respect to agency fees, conditions of work and wages, and to provide information in this regard. Please also provide information on any measures taken to address the alleged practice of migrant workers having to sign false documents.

Article 6. Equality of treatment and enforcement. The Committee recalls that the code of practice on employment under the Race Discrimination Ordinance of 2008 (RDO) provides that acts based on residency, nationality or citizenship should not be used to hide race discrimination in practice. The Committee notes that during the reporting period no complaints were lodged with the Equal Opportunities Commission (EOC) under the RDO regarding matters relating to the Convention. The Government also states that the EOC does not profile complainants by their employment status or profession though it registers cases involving dismissal of foreign domestic workers for reasons of disability or pregnancy. Between 1 June 2012 and 31 December 2013, complaints lodged by foreign domestic workers included ten cases concerning discrimination based on disability and seven cases concerning discrimination based on pregnancy. The Committee requests the Government to provide information on any specific measures taken to raise awareness among migrant workers of the RDO and the code of practice on employment, and the activities of the EOC in this regard. Please provide information on the number and nature of any legal proceedings brought by migrant workers or complaints lodged by them to the EOC relating to the matters set out in Article 6(1)(a)–(d) of the Convention, including cases of underpayment arranged by employment agencies (referred to in section 3.8.2(1) of the Code).

Article 6(1)(a)(iii). Accommodation. Regarding the requirement for employers to provide suitable accommodation and reasonable privacy under the standard employment contract (SEC), the Committee notes that the HKCTU and the FADWU continue to raise concerns about alleged reports of substandard accommodation of domestic workers. The organizations also maintain that the Immigration Department can only prosecute employers of domestic workers when proof is submitted that false information has been provided regarding accommodation. The Committee notes the information provided by the Government regarding guides for employers of domestic workers, as well as pre- and post-entry visits by the Immigration Department to ensure that suitable accommodation is indeed provided. It also notes that for immigrant workers under the Supplementary Labour Scheme (SLS), it is the Labour Department that undertakes the regular inspections of employment and accommodation with a view to checking compliance with the terms and conditions specified in the SLS, the SEC and labour laws. The Committee reiterates its request to the Government to indicate whether any consideration is being given to allowing foreign domestic workers to submit complaints also to the Labour Department regarding indecent accommodation. Please continue to provide information on the number of cases submitted to the Department of Immigration and the Labour Department by immigrant workers regarding indecent accommodation or breaches of the SEC in this regard, and their outcome.