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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Statistical data on migration. Following its previous comment, the Committee takes note of the statistical information annexed to the report of the Government, showing that during the period covered by the report, 103,044 foreign professionals, 10,908 foreign workers under the Supplementary Labour Scheme (SLS), and 361,004 Foreign Domestic Helpers (FDHs) (355,461 of whom are women) were admitted into the territory. The Committee also notes that additional data regarding FDHs are published periodically by the Immigration Department (ImmD) and the Women’s Commission of Hong Kong. The Committee welcomes the fact that the data available is disaggregated by sex and nationalities, evidencing that FDHs are predominantly women from the Philippines and Indonesia.

Article 1. National policies on migration. In follow-up to its previous request for information on any developments related to national policies on migration, the Committee takes note of the adoption in 2018 of an Action Plan to Tackle Trafficking in Persons and to enhance the Protection of Domestic Helpers in Hong Kong. Furthermore, the Committee notes that the Government is receiving technical assistance on the promotion of fair recruitment practices of migrant workers from the Office in the context of phase II of the Integrated Programme on Fair Recruitment (FAIR) of the ILO. The Committee requests the Government to provide information on the measures taken to implement the Action Plan to Tackle Trafficking in Persons and to enhance the Protection of Domestic Helpers and on the results of the technical assistance provided by the Office through its FAIR programme.

Article 2. Free services to assist migrant workers. In its previous comment, the Committee had requested the Government to provide information on its efforts to ensure that migrant workers benefit effectively from free services, including translation services. The Committee notes that in its report, the Government refers to a number of initiatives in this regard, including: (1) the establishment of free interpretation and translation services provided by the Labour Department; (2) the establishment by the Labour Department of hotlines available 24 hours a day and 7 days a week to respond to migrant workers’ inquiries about their rights; (3) the translation of the Standard Employment Contract, in collaboration with the Consulates Generals of the countries of origin; and (4) the production of information materials in foreign languages and their dissemination through various medias. The Government further indicates that migrant workers have access to free medical treatment, and are provided with free return passages to their countries of origin. The Committee takes note of all the information.

Article 3. Misleading propaganda. Regulation of employment agencies. Following its previous comment in this regard, the Committee takes note of the measures referenced in the report of the Government, aiming at ensuring that migrant workers are not victims of misleading propaganda, in particular from employment agencies (EAs). Among these measures, the Committee takes note of the Government’s efforts for the diffusion of accurate information, such as: (1) the launch of two websites by the Department of Labour (the FDH Portal, and the EAs Portal); (2) the production and diffusion of guides, leaflets, and other information materials in several languages; (3) the organization of workshops by the Equal Opportunity Commission (EOC) to promote a better knowledge of the substance of the anti-discrimination legislation among foreign workers (including FDHs); (4) the installation of information kiosks in places where FDHs gather on their weekly leave day; and (5) the collaboration with the authorities of countries of origin to diffuse accurate information prior to departure. The Committee also takes note of the Government’s indications on the regulation of EAs, that include information on the EAs’ licensing system, the inspections (regular and unannounced) of EAs conducted, the investigation of complaints against EAs, the prosecution of offences, the revocation of licences following convictions, as well as the promulgation in 2017 of a code of practice for EAs. Lastly, the Committee notes the adoption of the following additional measures concerning EAs: the publication in 2018 of a Practical Guide for operating EAs by the Department of Labour, and the entry into force on the same year of amendments to the Employment Ordinance (Cap. 57) and the Employment Agencies Regulations (Cap. 57 sub. Leg. A) that increased the maximum penalty for the operation of an employment agency without a licence and the overcharging of commissions to workers. While the Committee welcomes these developments, it notes the indication in the report of the Government that EAs are not authorized to receive a commission representing more than ten per cent of the worker’s first month’s salary (as provided under Part II of the Second Schedule of the Employment Agencies Regulations (Cap. 57 sub. Leg. A)). The Committee invites the Government to adopt measures to ensure that recruitment fees or related costs are not collected from workers.

Article 6(1)(a). Equality of treatment. Domestic workers. Remuneration and other working conditions and accommodation. For some years, the Committee had noted the concerns expressed by several workers’ organizations with regard to the situation of domestic workers and had requested the Government to provide information on the measures taken to ensure that FDHs are not treated less favourably as compared to nationals in respect to the matters enumerated in Article 6(1)(a)(i) and (iii) (remuneration and other working conditions, and accommodation).

Remuneration. In follow-up to its previous comments in this regard, the Committee notes that the Government reiterates that the Minimum Wage Ordinance (MWO) does not apply to live-in domestic workers but applies to other foreign workers. The Government further indicates that FDHs are covered by the Minimum Allowable Wage (MAW), which level is regularly reviewed by the Government, taking into account the general economic and employment situation as reflected in the relevant indicators, and the need to strike a balance between the affordability for employers and the livelihood of FDHs. The Government also indicates that the relevant employers’ and workers’ organizations are consulted for the fixing of the MAW. While taking note of this information, the Committee observes that for 2019, the MAW and the food allowance applicable to FDHs are respectively 4,520 Hong Kong dollars (HKD) and 1,075HKD per month, and that the minimum hourly wage rate prescribed under the MWO is 37.5HKD (that is approximately 8,100HKD per month for 48 hours of work per week). Thus, the Committee notes that the MAW amounts to approximately 70 per cent of the minimum wage. Noting that the allowances in kind received by FDHs may explain this differential, the Committee requests the Government to provide further details on the value attributed to these allowances (in particular to FDHs’ accommodations) when fixing the MAW.

Enforcement. Working conditions. On the application of Article 6(1)(a)(i) in practice, the Committee notes the Government’s indications that: (1) the Employment Ordinance and the anti-discrimination legislation apply to FDHs who may file complaints with the Labour Department (including through the hotline available at all times) and the EOC; (2) for all employment claims filed by FDHs, the Labour Department renders free conciliation services to resolve the dispute as soon as possible; (3) when settlements cannot be reached, the Labour Department refers the cases to the Labour Tribunal or the Minor Claims Adjudication Board for their adjudication; (4) the Labour Department investigates promptly any suspected offences under the Employment Ordinance or the Employee’s Compensation Ordinance; and (5) FDHs’ claims concerning serious assaults, including sexual assaults are referred to the police for their investigation and are being prosecuted. The Government also provides information on the number of cases settled or adjudicated, as well as on the number of summons issued for offences to the labour legislation. While taking note of this information, the Committee notes that on the sanctions imposed to FDHs’ employers in breach of their obligations, the Government refers to one employer being sentenced to four months of imprisonment and to another one being sentenced to hours of community services. The Committee requests the Government to provide more detailed information on the sentences actually imposed to the employers of FDHs found in breach of the legislation on working conditions (fines, imprisonment, or other types of sentences) and to clarify whether these sanctions are dissuasive in practice.

Furthermore, the Committee notes that the United Nations Committee on the Elimination of Racial Discrimination expressed concern over the fact that the live-in requirement renders domestic workers vulnerable to abuse, and that the rule requiring the workers to leave the territory within two weeks upon termination of contract hinders their ability to obtain redress for labour violations (CERD/C/CHN/CO/14–17, 20 August 2018, paragraph 30). In this regard, the Committee takes note of the indications in the report of the Government that: (1) FDHs may apply for extensions of stay to pursue civil or criminal proceedings; (2) arrangements are possible to enable FDHs who have returned to their home countries to testify in these proceedings; and (3) FDHs may also file applications to change employers. The Government further indicates that during the period covered by the report, all the applications filed for extensions of stay, and almost all the applications to change employers were approved. While taking note of this information, the Committee requests the Government to continue to provide detailed information on its efforts to ensure that FDHs have access to effective remedies to obtain redress for the violation of the legislation on working conditions. In particular, the Committee requests the Government to provide information on: (1) the number of complaints received from FDHs, the nature of these complaints, and the follow-up given to them; (2) the number of cases investigated by the authorities without complaints and their outcome; (3) the approval rates of the applications to extend stays or change employers; and (4) the arrangements made to enable workers who have left the country to testify in the context of civil or criminal proceedings.

Enforcement. Accommodation. With regard to the measures in place to combat the provision of substandard accommodations to FDHs, the Committee takes note of the Government’s indications that: (1) the Standards Employment Contract includes a schedule on the accommodation that is to be provided; (2) employers are required to provide detailed information on the FDH’s future accommodation to ImmD when the visa application is filed; (3) ImmD may inspect the accommodation, prior to the FDH’s entry and after his or her arrival; and (4) the Labour Department may also conduct unannounced visits to verify the accommodations provided to workers. Noting that the Government also indicates that ImmD and the Department of Labour do not keep statistics on the number of cases submitted by FDHs regarding substandard accommodations, the Committee wishes to highlight that appropriate data and statistics are crucial in determining inequalities of treatment faced by migrant workers, to set priorities and design measures, and to evaluate their impact and make adaptations where necessary (2016 General Survey, Promoting Fair Migration, paragraph 648). The Committee requests the Government to provide detailed information on the number of inspections of FDHs’ accommodations actually conducted, the number of complaints received on substandard accommodations, and the follow-up given to these inspections and complaints.

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

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.

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

The Committee notes the joint observations, received on 31 August 2014, of the Hong Kong Confederation of Trade Unions (HKCTU) and the Hong Kong Federation of Asian Domestic Workers Union (FADWU). It also notes the Government’s reply to these observations and to the previous observations made by the HKCTU and the FADWU.

Article 6(1)(a)(i) of the Convention. Equality of treatment. Foreign domestic workers. For some years, the Committee has been following up on concerns expressed by the International Trade Union Confederation (ITUC), the HKCTU and the FADWU regarding unequal treatment of foreign domestic workers, who represent the overwhelming majority of the immigrant workers admitted for employment in the Hong Kong Special Administrative Region, China. The Committee notes from the Government’s report that in 2014 there were 328,041 foreign domestic workers (98.4 per cent of whom are women) and 63,901 other immigrant workers (excluding those from mainland China). The Committee notes that in their most recent communication, the HKCTU and the FADWU restate previous concerns related to unequal treatment faced by migrant domestic workers with respect to their remuneration and accommodation, the difficulties encountered by these workers in accessing information and services, and the particular vulnerability of foreign domestic workers from Indonesia and Nepal to violations of their statutory rights and employment contracts.

The Committee previously noted that immigrant workers, including foreign domestic workers, enjoy the same statutory employment rights and protection as local workers, and have additional rights and benefits under the standard contract of employment (SEC). It also noted that, while foreign domestic workers are excluded from the scope of the Minimum Wage Ordinance (MWO), Chapter 608 of the Laws of Hong Kong, due to the mandatory live-in requirement (paragraph 3 of the SEC), they have been receiving a minimum allowable wage (MAW) since 2003 and enjoy additional benefits in kind including food, accommodation and free medical care, as specified in the SEC. According to the Government, the MAW is reviewed regularly in consultation with relevant employers’ and workers’ organizations and is currently set at 4,010 Hong Kong dollars (HKD) (up from HKD3,920 in 2012). The Committee notes that the HKCTU and the FADWU nonetheless consider that the exclusion of foreign domestic workers from the MWO is discriminatory and that there is no mechanism in place to measure or calculate the real costs of accommodation. The mandatory live-in requirement also makes migrant domestic workers more prone to abuse and violations of their rights.

The Committee notes the Government’s commitment to providing “a level playing field for all immigrant workers vis-à-vis the local workforce”. In this regard, the Government refers to the range of legislative and practical measures it has taken with a view to implementing the Convention and ensuring that immigrant workers, in particular foreign domestic workers, enjoy the same rights and protection as local workers, have free access to services, including interpretation services, and access to complaints mechanisms. The Government has also adopted a proactive policy to raise awareness and education among employers and foreign domestic workers about their rights and obligations (using guidebooks, media, advertisements, etc.) and has stepped up its efforts to collaborate with countries of origin to promote the rights of foreign domestic workers. Noting the sustained efforts by the Government to protect the rights of foreign domestic workers and taking into account the concerns expressed by the HKCTU and the FADWU regarding their particular conditions of work, the Committee requests the Government to make special efforts, in consultation with workers’ and employer’s organizations, to examine the working patterns of foreign domestic workers so as to determine whether in practice less favourable treatment is applied to them as compared to nationals and other migrant workers with respect to the matters enumerated in Article 6(1)(a) of the Convention (remuneration, conditions of work and accommodation). Please provide full information on any steps taken in this respect and on the results achieved. The Committee also requests the Government to clarify how the cost of accommodation for live-in workers is calculated.

Enforcement. The Committee notes that, according to the HKCTU and the FADWU, migrant domestic workers continue to face difficulties in filing complaints, including to the Labour Department, due to the length of proceedings, language barriers, the live-in requirement and the “two-week rule” (which requires foreign domestic workers to leave the Hong Kong Special Administrative Region, China, within two weeks of the expiration or premature termination of their employment contract). The Government reaffirms that migrant domestic workers can seek redress through the legal system and can benefit from legal aid as long as the eligibility criteria applicable across the board are met. According to the Government, foreign domestic workers have full access to the services provided by the Labour Department, including free consultation and conciliation services, and the procedure for claims and the waiting time for conciliation meetings are applied equally and fairly to both local workers and foreign domestic workers. The Committee notes that between 1 June 2012 and 31 May 2014 the Labour Department handled 6,134 claims involving foreign domestic workers or other immigrant workers under the Supplementary Labour Scheme (SLS) concerning alleged breaches of the Employment Ordinance or the SEC; 1.9 per cent of these involved the underpayment of wages. Of the cases that could not be settled through the Labour Department’s conciliation efforts, 1,298 claims were subsequently referred to the Labour Tribunal (LT) or the Minor Employment Claims Adjudication Board (MECAB). During the review period, the Labour Department also issued 124 summonses involving underpayment of wages or other breaches of the Employment Ordinance by employers of immigrant workers, although it is not clear whether these concerned foreign domestic workers. Regarding the two-week rule and access to proceedings, the Government indicates that all 7,014 applications for extensions of stay from foreign domestic workers to pursue civil or criminal proceedings were approved. For the same period, 55,011 applications were approved for foreign domestic workers to change workplace, while 289 applications were refused, largely due to the applicants’ failure to meet the criteria for change of employment. 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 progress made in this regard. It also requests the Government to take appropriate measures to strengthen the enforcement of the rights of foreign domestic workers under the Employment Ordinance and the SEC, 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, are able to complete the legal proceedings and obtain redress. Please continue to provide information on the number and nature of claims relating to violations of the relevant laws and regulations and the SEC, including underpayment claims, submitted by foreign domestic workers and other migrant workers under the SLS to the Labour Department, the Labour Tribunal and the Minor Employment Claims Adjudication Board, and their outcome.

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

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

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 communication, 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 was sent to the Government for its comments.

Article 1 of the Convention. Information on national policies, laws and regulations. Permanent residency. The Committee recalls its previous observation in which it had noted that the immigration rules (section 2(4)(a)(vi) of the Immigration Ordinance) prevent foreign domestic workers from being eligible to seek permanent residence. The Committee notes that on 28 March 2012, the High Court of Appeal overturned the decision of the High Court of First Instance which found that section 2(4)(a)(vi) of the Immigration Ordinance (Chapter 115) was inconsistent with section 24(2)(4) of the Basic Law of Hong Kong SAR of the People’s Republic of China. The Committee notes that appeal against the High Court of Appeal’s ruling is pending before the Court of Final Appeal. The Committee notes from the information submitted to the High Court of First Instance that as of 31 December 2010, there were 117,000 domestic workers who had been continuously working in Hong Kong for more than seven years. Considering the important number of foreign domestic workers residing in HKSAR for longer than seven years, and considering the impact that the decision the High Court of Final Appeal could have on the domestic worker population in HKSAR, the Committee asks the Government to provide information on the outcome of the case pending before the Court of Final Appeal. The Committee also asks the Government to provide information on any developments regarding its policy domestic worker policy, in particular their right to permanent residence.

Article 6. Equality of treatment. The Committee recalls its previous comments regarding the application to migrant workers of the Race Discrimination Ordinance (RDO) No. 29 of 2008, which does not include immigration status and nationality among the prohibited grounds of discrimination. It had noted, however, that the Code of Practice on Employment under the RDO provides that acts based on residency, nationality or citizenship should not be used to hide race discrimination in practice. The Committee notes that HKCTU and FADWU express concerns at the impact of excessive agency fees on the salary level of foreign migrant workers, and arranged underpayment by the employment agencies and employers of domestic workers from India, Indonesia and Sri Lanka. The Committee notes that during the reporting period there were 89 complaints lodged by foreign domestic workers involving alleged overcharging by employment agencies or unlicensed operation of employment agencies; prosecutions were instituted in seven cases with seven convictions, and in some cases, the employment agency was ordered to compensate the victim. The Committee notes that no complaints were lodged by foreign domestic workers with the Equal Opportunities Commission under the RDO regarding matters relating to the Convention. The Committee asks the Government to provide information on the practical application to migrant workers of the Race Discrimination Ordinance of 2008 and the Code of Practice on Employment, including on the number and nature of any legal proceedings in court brought by migrant workers or complaints filed by them to the Equal Opportunities Commission 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) of Indian, Indonesian and Sri Lankan domestic workers.

Invalidity and old age. The Committee notes that domestic workers (both local and foreign) continue to be excluded from the Mandatory Provident Fund Schemes Ordinance (Chapter 485), which provides for an employment-based retirement protection system. The Committee notes the Government’s confirmation that domestic workers are covered by the Criminal and Law Enforcement Injuries Compensation Scheme (CLEIC), the Traffic Accident Victims Scheme (TAVA) and the Emergency Relief Fund (ERF). In addition, they can also benefit from a number of charitable or trust funds providing relief in emergency situations. Noting that the overwhelming majority of the migrant worker population are domestic workers, the Committee asks the Government to make special efforts to examine the situation with a view to taking measures to extend old-age benefits to domestic workers. The Committee asks the Government to provide information on the number of foreign domestic workers that have benefitted or used the services of the above schemes and funds.

Article 6(1)(a)(iii). Accommodation. Further to its observation, the Committee notes that the live-in requirement is specified in the standard employment contract, and that the domestic worker is entitled to suitable accommodation with reasonable privacy under the Revised Schedule of Accommodation and Domestic Duties annexed to the contract. The Committee notes that according to HKCTU and FADWU some conditions of accommodation are below standard but foreign domestic workers cannot file complaints with the Labour Department regarding indecent accommodation, while the Department of Immigration can only prosecute employers when proof is submitted that false information has been provided regarding accommodation. The Committee requests the Government to provide information on any measures taken to allow migrant workers to submit complaints to the Labour Department regarding indecent accommodation, and on the number of cases submitted to the Department of Immigration regarding cases of indecent accommodation or breaches of the standard employment contract in this regard, and their outcome.

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

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.]

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

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

Article 1 of the Convention. Information on legislative developments. The Committee notes the adoption of the Race Discrimination Ordinance (RDO) No. 29 of 2008, which covers domestic workers (with exceptions regarding recruitment which falls outside the scope of this Convention) and which provides for definitions of direct and indirect discrimination, and protects against harassment and victimization. It also notes that the Ordinance does not include immigration status and nationality among the prohibited grounds of discrimination. However, the Committee also notes that the Code of Practice on Employment under the Race Discrimination Ordinance states that although acts based on residency, nationality or citizenship would not constitute race discrimination, these grounds should not be used to hide race discrimination in practice. In such a case, the person discriminated against may bring legal proceedings in court or file a complaint to the Equal Opportunities Commission for investigation and conciliation. The Committee also notes that according to section 3.8.2(1) of the Code, which refers to section 21 of the RDO on employment agencies, arranging underpayment for workers of certain racial groups constitutes race discrimination. The Committee asks the Government to provide information on the practical application of the Race Discrimination Ordinance of 2008 to migrant workers, including on the number and nature of any complaints filed by migrant workers to the courts or to the Equal Opportunities Commission relating to the matters set out in Article 6(1)(a)–(d) of the Convention.

Article 6(1)(b). Equality of treatment with respect to social security. Standard employment contracts. The Committee notes the Government’s statement that in the financial year 2009–10 an estimated 30,000 immigrant workers, including “imported workers” and domestic workers had made use of public medical health services. The Government adds that at present the Government does not have any plan to implement the proposed seven-year residence requirement for eligibility for public health-care benefits. The Committee further notes the information provided on the claims lodged regarding non-payment of compensation of work-related injuries by employers and asks the Government to continue to provide information on the number of claims submitted by “imported workers” and domestic workers concerning non-compliance of social security provisions to the Labour Department, the Labour Tribunal or the Minor Employment Claims Adjudication Board.

Invalidity and old age. The Committee notes that domestic workers (both local and foreign) continue to be excluded from the Mandatory Provident Fund Schemes Ordinance (Chapter 485), which provides for an employment-based retirement protection system. The Committee further notes the information on the eligibility criteria for the Criminal and Law Enforcement Injuries Compensation Scheme (CLEIC), the Traffic Accident Victims Scheme (TAVA) and the Emergency Relief Fund (ERF). Noting that over 80 per cent of the migrant worker population are domestic workers, the Committee asks the Government to make special efforts to examine the situation with a view to taking measures to extend old-age benefits to domestic workers. Please confirm that foreign domestic workers are covered by the various schemes and funds, including the Brewin Trust Fund.

Family and childcare support services. The Committee asks the Government to provide information on the number and category of foreign workers (professionals, “imported workers” and domestic workers, and highly skilled persons admitted under the Quality Migrant Admission Scheme) who have benefited from the family and childcare support services.

Statistics. Please continue to provide statistical information, disaggregated by sex and nationality, on the number of persons admitted for employment under the categories of foreign professionals, domestic workers, and workers under the supplementary labour scheme as well as under the new Quality Migrant Admission Scheme.

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

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.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

normal'>(notification: 1997)

Article 1 of the Convention. New developments. The Committee notes that a new Quality Migrant Admission Scheme was implemented as of 28 June 2006 to attract highly skilled or talented people from mainland China and overseas. Persons admitted under the scheme will be allowed to stay an initial period of one year without having first secured an offer of employment. To obtain an extension, the worker will have to demonstrate that he or she has taken steps to settle in the Hong Kong Special Administrative Region, China, by taking up a residence or by securing gainful employment. Please provide further information, disaggregated by sex and nationality, on the number of persons that have been admitted under the Quality Migrant Admission Scheme. Please also indicate the relevant legislation covering these workers with respect to the matters covered by the Convention, and in particular Articles 6 and 8 of the Convention.

Article 6(1)(a)(i). Equal treatment with respect to conditions of work. With respect to its previous comments regarding the vulnerability of foreign domestic workers to physical, mental and sexual abuse and violations of their standard employment contract, the Committee notes the many activities carried out by the Government to promote a better understanding and increase awareness among foreign domestic workers as well as relevant government officials, employers’ associations and workers’ groups of the rights and obligations of foreign domestic workers, including the participation of government officials in pre-departure workshops in Indonesia and the Philippines for prospective domestic workers. The Committee notes that from 1 June 2004 to 31 May 2007, the Labour Department has handled 5,463 claims (other than alleged underpayment of wages) from “imported” and foreign domestic workers concerning alleged breaches of the Employment Ordinance (EO) (Chapter 57) or standard employment contracts; 1,750 of these cases were referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board. Please continue to provide information on the measures taken to prevent abuse and discrimination of foreign domestic workers as well as on the number and nature of the complaints submitted, the penalties imposed and the remedies provided, with an indication of how many of these claims related to cases of physical, mental and sexual abuse and how many to violations of standard employment contracts. Given that due to fear of reprisals certain foreign domestic workers facing abuse may encounter additional difficulties in filing complaints, please also indicate whether any measures have been taken to ensure that the available complaints procedures are easily accessible for these workers.

Article 6(1)(b). Equality of treatment with respect to social security. Standard employment contracts. Further to its observation, the Committee notes the information provided by the Government on the complaints and reconciliation procedures of which “imported” workers and foreign domestic workers can avail themselves in the case of non-compliance with the social security provisions in the standard employment contract. The Committee notes that in the case of the employer failing to pay an award made by the Labour Tribunal or the Minor Employment Claims Adjudication Board, the “imported” worker or the foreign domestic worker may apply to the district court to enforce the award. Where the employer is insolvent, the “imported” worker will be referred to the Legal Aid Department and can apply for an ex-gratia payment from the Protection of Wages on Insolvency Fund. The Committee asks the Government to continue to provide information on the number of claims submitted by imported workers and foreign domestic workers concerning non-compliance of social security provisions of the Employment Order and the standard employment contract handled by the Labour Department, the Labour Tribunal or the Minor Employment Claims Adjudication Board. Please also provide information on the remedies provided.

Invalidity and old age. The Committee notes that the rationale for exempting both local and foreign domestic helpers from the application of the Mandatory Provident Fund Schemes Ordinance (Chapter 485), which provides for an employment-based retirement protection system is due to the anticipated administrative difficulties in ensuring compliance and enforcement, including the inconvenience caused to families in their residential premises. The Committee wishes to point out that depriving certain categories of migrant workers of the right to equal treatment invoking administrative difficulties relating to compliance or enforcement would not be acceptable within the meaning of the Convention. While noting that both nationals as well as foreign domestic workers are being excluded, the Committee recalls that foreign domestic workers constitute over 80 per cent of the persons admitted for employment in the Hong Kong Special Administrative Region, China. The Committee therefore asks the Government to re-examine the situation with a view to taking measures to extend old-age benefits to domestic workers.  Please also indicate whether persons admitted under the new Quality Migrant Workers Scheme are covered by the Mandatory Provident Fund Schemes Ordinance (Chapter 485).

The Committee further notes that migrant workers are excluded from the Social Security Allowance (SSA) Scheme and the Comprehensive Social Security Assistance (CSSA) Scheme, which are non-contributory and payable wholly out of public funds. However, if they have been employed in the Hong Kong Special Administrative Region, China, for not less than a month and become wholly or partially incapacitated for work by reason of age, sickness or disablement, they may apply for the Brewin Trust Fund. Noting further that the Criminal and Law Enforcement Injuries Compensation Scheme, the Traffic Accident Victims Scheme and the Emergency Relief Fund provide assistance to persons, including immigrants, who meet the eligibility criteria irrespective of the length of residence, the Committee asks the Government to provide further details on the eligibility criteria for these schemes and fund. Please also indicate whether persons admitted under the new Quality Migrant Workers Scheme are covered by these schemes and funds.

Equality of treatment. Family responsibilities. The Committee reiterates its requests for information on the qualifying conditions and circumstances allowing the different categories of migrants to benefit from family and child care support.

Practical application. Please continue to provide statistical information, disaggregated by sex and nationality, on the number of persons admitted for employment under the categories of foreign professionals, domestic workers, and workers under the supplementary labour scheme as well as under the new Quality Migrant Admission Scheme.

[The Government is asked to reply in detail to the present comments in 2010.]

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

normal'>(notification: 1997)

Article 6 of the Convention. Equality of treatment between migrant workers, particularly domestic workers, and nationals. The Committee recalls its previous observation in which it continued its dialogue with the Government on the recommendations made by the Governing Body at its 288th Session (November 2003) concerning a representation made by the Trade Union Congress of the Philippines (TUCP), under article 24 of the ILO Constitution, alleging non-observance by China of Convention No. 97 with respect to the Hong Kong Special Administrative Region. In this observation, the Committee urged the Government as follows: (1) to review its proposal to apply a seven-year residence requirement for eligibility for public health care, and its impact on the principle of equal treatment; (2) to provide information on the complaints received from “imported” workers and foreign domestic helpers by the Labour Department with regard to non-compliance with the social security provisions of the standard employment contract; (3) to assess the impact of the wage and levy policies on the equal treatment between nationals and imported and foreign domestic helpers; (4) to provide information comparing the number of underpayment claims received before and after the entering into force of the wage and levy policies in 2003, and on the claims that have resulted in compensation for underpaid wages of the foreign domestic workers concerned; and (5) to provide information on the measures taken to prevent and punish abuse of migrant workers, especially foreign domestic workers, and the impact of these measures on their conditions of work.

Equality of treatment with respect to social security

Access to public health care. The Committee notes the Government’s statement that “imported” workers, foreign domestic helpers and professionals are entitled to receive medical treatment in public hospitals and clinics, and that immigrant workers are charged the same subsidized rate as that for local residents. In 2006–07 an estimated 25,000 “imported” workers and foreign domestic helpers made use of the public medical services. The Committee notes with satisfaction that the Government has abandoned the plan to implement the proposed seven-year residence requirement for eligibility for public healthcare benefits in the foreseeable future. The Committee asks the Government to continue to report on the access of “imported” workers and foreign domestic helpers to public healthcare. With respect to complaints received on social security provisions in standard employment contracts, the Committee refers to its 2008 direct request on this Convention.

Equality of treatment with respect to remuneration

The Committee notes that the Minimum Allowable Wage (MAW), which had been reduced from 3,670 Hong Kong Dollars (HKD) to HKD3,270 in 2003, has been subsequently increased to the current level of HKD3,580 (July 2008), and that the Employees Retraining Levy (ERL) has remained at HKD400. The Committee further notes that on 19 July 2006, the High Court of the Hong Kong Special Administrative Region, China, ruled in favour of the Government in an appeal lodged by a group of foreign domestic helpers against the Chief Executive Council, the Director of Migration and the Employees Retraining Board (Civil Appeal No. 218 of 2005) challenging the imposition of the ERL on foreign domestic helpers and the reduction of the minimum wage in 2003 by the same amount. However, the Committee also notes from information published by the Immigration Department of the Hong Kong Special Administrative Region, China, that in August 2008, the Government decided to suspend the obligation for employers of all “imported labour”, including foreign domestic helpers, to pay the ERL for employment of foreign domestic helpers from 1 August 2008 to 31 July 2010. The suspension was further extended to 31 July 2013, by the Employees Retraining Ordinance (Amendment of Schedule 3) (No. 2) Notice 2008 (Amendment Notice No. 2), which was tabled at the Legislative Council for vetting on 12 November 2008. The Committee notes that the levy suspension will apply to new employment contracts and the renewal of existing contracts of “imported workers” and foreign domestic helpers for whom visas are issued by the Immigration Department between 1 August 2008 and 31 July 2013, irrespective of the date on which the contracts are signed.

The Committee further notes that the Government has acknowledged that some employers with pre-existing contracts for foreign domestic helpers may terminate their contracts prematurely in order not to pay the levy as soon as the suspension takes effect. It has therefore introduced a new special arrangement as of 1 August 2008, whereby applications for advanced contract renewal involving the same employer and the same employee are accepted during the suspension period, without requiring the foreign domestic helper to leave the Hong Kong Special Administrative Region, China, after the existing contracts have been terminated. For existing contracts which are still in force with an outstanding levy, the employers have to settle the payment in the usual manner. If the contract is subsequently terminated prematurely with an unused levy balance, the balance shall not be reimbursed or carried forward until after the suspension period. Finally, the Committee notes that as of 31 July 2008, there were about 252,200 foreign domestic helpers, mostly women, and 1,330 “imported workers” such as care workers and farm workers in the Hong Kong Special Administrative Region, China, under the Supplementary Labour Scheme. Their employers will benefit from the levy suspension when they renew the contracts of their worker at any time during the five-year suspension period.

The Committee welcomes the measures to suspend the ERL for five years and the measures to reduce the risk of employers prematurely terminating pre-existing contracts, along with the subsequent increases in the MAW of foreign domestic workers, which constitute important progress in the application of Article 6 of the Convention. Nevertheless, the Committee also notes that certain issues are still pending. Firstly, the Government’s policy that the overall expenses of the Employees Retraining Board should be primarily met by a levy and that employers of low-skilled “imported” labour should contribute towards the training and retraining of local workers, remains unchanged. Furthermore, it needs to be assessed whether foreign domestic workers whose visas have been issued before 1 August 2008 are at an increased risk of losing their employment prematurely because their employer wants to change his or her domestic worker in order to take advantage of the levy suspension; something which might not have happened if the levy suspension were applicable to all foreign domestic workers. In order to be able to assess that real progress is being made in the application of the principle of equal treatment enshrined in Article 6 of the Convention and that the principles of equity and proportionality are being applied to all foreign domestic workers, the Committee asks the Government to provide information on the following:

(i)    the reasons for applying the levy suspension only to new employment contracts and renewal of existing contracts;

(ii)   to examine, with a view to extending the levy suspension to all foreign domestic helpers, whether the levy suspension has significantly increased the premature termination of pre-existing employment contracts of foreign domestic workers without renewal, after 1 August 2008; and

(iii) any further developments with respect to the suspension of the obligation for employers of foreign domestic helpers and “imported” workers to pay the ERL.

Underpayment claims. With regard to the issue of underpayment of wages of foreign domestic helpers as a result of the wage and levy policies previously raised by the Indonesian Migrant Workers Union (IMWU) and the Asian Domestic Workers Union (ADWU), the Committee notes that there has been an increase in claims on alleged underpayment of wages handled by the Labour Department, involving 800 claims from 1 June 2004 to 31 March 2007. Of the 800 cases, 330 were settled with the assistance of the Labour Department and the remaining 470 were subsequently referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board. According to the Government, the growing number of claims can be attributed to the increased awareness of foreign domestic helpers of their statutory and contractual rights as well as the avenues for submitting complaints. Apart from assisting “imported” workers or foreign domestic helpers to pursue their employment claims, the Department of Labour has also summoned 93 employers because of underpayment of wages or breaches of the Employment Ordinance Order, 92 of which resulted in a conviction and a fine. The Committee further notes that to enhance the deterrent effect against employers defaulting on wage payments, the maximum penalty for wage offences has been substantially increased from a fine of HKD200,000 and imprisonment for one year to a fine of HKD350,000 and imprisonment for three years since March 2006. The Committee asks the Government to continue to provide information on the claims submitted by foreign domestic workers for the underpayment of wages, including information on the number of any of the new claims, as well as those submitted since June 2004 that have actually resulted in compensation of the foreign domestic workers concerned.

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 2010.]

 

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows.

1. Article 5(b) of the Convention. With reference to its previous comments on the medical services available to members of the migrant worker’s family, the Committee notes the explanations by the Government that imported workers and foreign domestic workers are not allowed to bring their family members. When they apply to enter Hong Kong SAR as visitors, they will be subject to the rules applicable to visitors if in need of medical attention. However, for those who genuinely lack the means for obtaining medical services, the Social Welfare Department of the Hospital Authority has the discretion to waive the fees and charges.

2. Article 6(1). Equality of treatment. In its previous observation, the Committee had requested information on the practical application of the possibility for foreign domestic workers to apply for an extension of stay in Hong Kong SAR after the expiration of the two weeks after termination of their contract, a rule, which in the views of the Indonesian Migrant Workers Union (IMWU) and the Asian Domestic Workers Union (ADWU) was discriminatory. The Committee notes that during the reporting period all of the 9,898 applications for extensions of stay because of civil or criminal proceedings from the foreign domestic helpers were approved. Moreover, from October 2003 to May 2004, 10,389 applications were approved to change employer without returning to the home country. The Committee asks the Government to continue to provide information on the number of applications submitted to extend stay in Hong Kong or to change employers and the reasons for refusal, if any.

3. Article 6(1)(b). Equality of treatment with regard to invalidity and old‑age. The Committee notes that all employers and workers in Hong Kong SAR are subject to the Mandatory Provident Fund (MPF) Schemes Ordinance (Chapter 485) which provides for an employment-based retirement protection system. However, it also notes the Government’s statement that migrant workers who enter the country for less than 13 months, those who are covered by overseas retirement schemes and foreign and local domestic workers are exempted from the scheme, but that there is no distinction between nationals and imported workers as regards old-age protection. Given the high numbers of foreign domestic workers employed in Hong Kong SAR – 219,058 foreign domestic workers as compared to only 893 imported workers and 49,838 professionals, in 2004 – the Committee asks the Government to indicate the reasons for exempting domestic workers from the application of the MPF schemes and whether it has any intention to provide in future old-age protection for these workers. With respect to disability, the Committee notes that the Social Security Allowance (SSA) Scheme provides financial assistance to severely disabled and the elderly aged 65 or above to meet the special needs arising from disability or old-age. The Comprehensive Social Security Assistance (CSSA) Scheme provides a safety net for those who cannot support themselves financially. Both schemes are non-contributory and are offered to persons meeting specific residence requirements and other qualifying conditions. The Committee asks the Government to indicate the conditions under which the different categories of migrant workers can be covered by the SSA and CSSA schemes.

4. Equality of treatment – family responsibilities. The Committee notes from the Government’s report that family and childcare support services are available to all persons meeting qualifying conditions or if their circumstances warrant. Please indicate the qualifying conditions and circumstances allowing the different categories of migrant workers to benefit from family and child care support services.

5. Article 11. The Committee notes the Government’s explanation that the labour legislation of Hong Kong SAR applies to all legally employed local and immigrant workers and that no persons are classified as “frontier workers” for the purpose of the application of the Convention. The Committee understands this to mean that there is no special regime applying to frontier workers i.e. living on one side of the border and working in Hong Kong SAR.

6. Parts IV and V of the report form. Practical application and statistics. The Committee notes the statistical data on the numbers of the immigrants admitted to the main categories of employment and asks the Government to indicate in its next report the number of male and female migrant workers employed in the different occupations under each category. The Committee also notes with interest that a new unit has been set up by the Labour Department in 2002 to investigate complaints on violations of the Employment Ordinance speedily, and that a special task force was created comprising representatives of the Labour Department, the Immigration Department and the Police to tackle alleged cases of underpayment of wages of foreign domestic helpers and malpractices of employment agencies. The Committee  asks the Government to provide information on the number and nature of complaints lodged by migrant workers and the malpractices by employment agencies detected as well as the penalties imposed and remedies provided.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

1. Article 6 of the Convention. Equality of treatment. The Committee recalls that at its 288th Session (November 2003) the Governing Body approved the report of the tripartite committee set up to examine a representation made by the Trade Union Congress of the Philippines (TUCP), under article 24 of the ILO Constitution, alleging non-observance by China of Convention No. 97 with respect to the Special Administrative Region (SAR) of Hong Kong. The allegations related to certain measures approved by the Government of Hong Kong SAR affecting the wages and the social security rights of foreign domestic workers and which were harmful for Filipino workers and in violation of Article 6 of the Convention. The Governing Body had concluded that the proposed residence requirement of seven years in Hong Kong SAR in order to be eligible to public health-care services would be too long and that the automatic exclusion of foreign domestic helpers from these services would contravene Article 6(1)(b) of the Convention. Furthermore, the Governing Body had found that imposing an employees’ retraining levy of HK$400 on the employers of all imported workers and foreign domestic workers whose wages were already the lowest amongst migrant workers, while at the same time reducing the Minimum Allowable Wage (MAW) of these foreign domestic workers with the same amount, would not be equitable.

Equality of treatment with respect to social security

2. In its previous observation, the Committee followed up the Governing Body’s request to the Government not to implement the proposed measure to apply a residence requirement of seven years and to take the necessary steps to ensure that the social security provisions in the standard contract for foreign domestic helpers and imported workers were strictly enforced. The Committee notes that the Government is still considering the application of a seven-year residence rule to all immigrants for eligibility for public health-care benefits. The Government insists that imported workers and foreign domestic workers would not be affected by this measure because they would continue to be provided with free medical care by their employers under the standard employment contract. The Government adds that foreign domestic workers and imported workers failing to obtain free medical treatment from their employers could always lodge a complaint with the Labour Department or the Labour Tribunal. For those genuinely lacking the means to pay for medical services in public hospitals and clinics, the Social Welfare Department or Hospital Authority has the discretion to waive the fees and charges.

3. While acknowledging the explanations given by the Government, the Committee recalls that the principle of equal treatment under Article 6(1)(b) of the Convention concerns equality of treatment with respect to social security of all migrant workers with nationals. It is concerned that while the contractual protections provided with regard to medical treatment may be sufficient in some instances, they may not cover all the instances for which the need to access public health-care services would be indispensable and as such deprive certain migrant workers, especially those with lower wages, from their right to enjoy health-care benefits available to national workers. Noting that the Government is still considering the details for the implementation of the policy, the Committee urges the Government once again to review its proposal to apply a seven-year residence requirement for eligibility for public health care, especially its impact on the equality of treatment between nationals and non-nationals as regards social security. Please also provide information on the estimated number of imported workers and foreign domestic helpers that are currently making use of public health-care services.

4. Further to the above, the Committee notes the efforts by the Hong Kong Government to publicize the statutory and contractual rights and benefits of foreign domestic helpers and to help them to lodge complaints. The Committee asks the Government to provide information on the number of complaints received from imported workers and foreign domestic helpers by the Labour Department with regard to non-compliance with the social security provisions of the standard employment contract, and the remedies provided in case of non-compliance.

Equality of treatment with regard to remuneration

5. In its previous observation, the Committee had followed the Governing Body in its request to the Government to provide information on any planned or ongoing review of the wage and levy policies, taking into account the principle of equality of treatment between nationals and non-nationals laid down in Article 6(1)(a) of the Convention, and the principles of proportionality and equity. The Government also has been asked to provide further information on: (a) the wages of local domestic helpers and of local employees in comparable jobs; (b) on any underpayment claims made by foreign domestic workers; and (c) on the impact of the measures taken by the Government to encourage these workers to forward complaints.

6. The Committee thanks the Government for its explanation on the underlying economic reasons for the adopted wage and levy policies but must point out that these explanations had already been taken into account by the Governing Body in its examination of the representation made by the TUCP. The Committee notes the Government’s statement that it is not in a position to provide statistics on wages of full-time live-in local domestic helpers as their number is negligibly small and local domestic helpers mostly service households that do not require live-in workers. As for statistics on comparable categories of local employees working in elementary occupations, the Government merely states that they have suffered from a higher wage reduction (16 per cent) than the reduction bore by foreign domestic helpers (11 per cent). The Committee recalls that in order to reach definite conclusions as to whether Article 6(1)(a) of the Convention is fully applied in Hong Kong SAR, it would need statistical data, disaggregated by sex on the wages of local domestic workers and other local employees in elementary occupations. The Committee therefore urges the Government to provide this information in its next report and to indicate the impact of the abovementioned wage and levy policies on the equality of treatment between nationals, on the one hand, and imported migrant workers and foreign domestic helpers, on the other.

7. With regard to the points raised by the Indonesian Migrant Workers Union (IMWU), and the Asian Domestic Workers Union (ADWU) in their communication of January 2003 regarding the possible underpayment of foreign domestic helpers as a result of the wage and levy policies, the Committee notes that between June 2002 and May 2004, the Labour Department has handled 287 claims involving underpayment of wages and that 193 of them were subsequently referred to the Labour Tribunal or Minor Employment Claims Adjudication Board. While appreciating the measures indicated by the Government in its report to encourage foreign domestic helpers to lodge complaints and the assistance provided to these workers in recovering underpaid wages, the Committee would welcome specific information comparing the number of underpayment claims received before and after the entering into force of the abovementioned measures in April and October 2003, and on the number of these claims that have actually resulted in compensation for the underpaid wages of the foreign domestic workers concerned.

Equality of treatment with regard to conditions of work

8. With regard to comments by the IMWU and the ADWU on the vulnerability of foreign domestic workers, especially Indian, Indonesian and Sri Lankan domestic workers, to physical, mental and sexual abuse and violations of their standard employment contract, the Committee notes the commitment expressed by the Government to step up the protection of the labour rights of foreign domestic workers. It also notes the information provided by the Government on the sentences imposed on a number of employers for abusing foreign domestic workers, and on measures taken to raise awareness amongst employers and migrant workers with respect to their contractual and statutory rights and obligations. The Committee asks the Government to continue to provide information on the measures it is taking to prevent and punish abuse of migrant workers, especially foreign domestic workers, and the impact of these measures on their conditions of work. Please also provide information on the number and nature of complaints received by the Labour Department, the Police and Immigration Department, and the Labour Tribunal, as well as the penalties imposed and the remedies provided.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. Article 5(b) of the Convention. With reference to its previous comments on the medical services available to members of the migrant worker’s family, the Committee notes the explanations by the Government that imported workers and foreign domestic workers are not allowed to bring their family members. When they apply to enter Hong Kong SAR as visitors, they will be subject to the rules applicable to visitors if in need of medical attention. However, for those who genuinely lack the means for obtaining medical services, the Social Welfare Department of the Hospital Authority has the discretion to waive the fees and charges.

2. Article 6(1). Equality of treatment. In its previous observation, the Committee had requested information on the practical application of the possibility for foreign domestic workers to apply for an extension of stay in Hong Kong SAR after the expiration of the two weeks after termination of their contract, a rule, which in the views of the Indonesian Migrant Workers Union (IMWU) and the Asian Domestic Workers Union (ADWU) was discriminatory. The Committee notes that during the reporting period all of the 9,898 applications for extensions of stay because of civil or criminal proceedings from the foreign domestic helpers were approved. Moreover, from October 2003 to May 2004, 10,389 applications were approved to change employer without returning to the home country. The Committee asks the Government to continue to provide information on the number of applications submitted to extend stay in Hong Kong or to change employers and the reasons for refusal, if any.

3. Article 6(1)(b). Equality of treatment with regard to invalidity and old-age. The Committee notes that all employers and workers in Hong Kong SAR are subject to the Mandatory Provident Fund (MPF) Schemes Ordinance (Chapter 485) which provides for an employment-based retirement protection system. However, it also notes the Government’s statement that migrant workers who enter the country for less than 13 months, those who are covered by overseas retirement schemes and foreign and local domestic workers are exempted from the scheme, but that there is no distinction between nationals and imported workers as regards old-age protection. Given the high numbers of foreign domestic workers employed in Hong Kong SAR - 219,058 foreign domestic workers as compared to only 893 imported workers and 49,838 professionals, in 2004 - the Committee asks the Government to indicate the reasons for exempting domestic workers from the application of the MPF schemes and whether it has any intention to provide in future old-age protection for these workers. With respect to disability, the Committee notes that the Social Security Allowance (SSA) Scheme provides financial assistance to severely disabled and the elderly aged 65 or above to meet the special needs arising from disability or old-age. The Comprehensive Social Security Assistance (CSSA) Scheme provides a safety net for those who cannot support themselves financially. Both schemes are non-contributory and are offered to persons meeting specific residence requirements and other qualifying conditions. The Committee asks the Government to indicate the conditions under which the different categories of migrant workers can be covered by the SSA and CSSA schemes.

4. Equality of treatment - family responsibilities. The Committee notes from the Government’s report that family and childcare support services are available to all persons meeting qualifying conditions or if their circumstances warrant. Please indicate the qualifying conditions and circumstances allowing the different categories of migrant workers to benefit from family and child care support services.

5. Article 11. The Committee notes the Government’s explanation that the labour legislation of Hong Kong SAR applies to all legally employed local and immigrant workers and that no persons are classified as "frontier workers" for the purpose of the application of the Convention. The Committee understands this to mean that there is no special regime applying to frontier workers i.e. living on one side of the border and working in Hong Kong SAR.

6. Parts IV and V of the report form. Practical application and statistics. The Committee notes the statistical data on the numbers of the immigrants admitted to the main categories of employment and asks the Government to indicate in its next report the number of male and female migrant workers employed in the different occupations under each category. The Committee also notes with interest that a new unit has been set up by the Labour Department in 2002 to investigate complaints on violations of the Employment Ordinance speedily, and that a special task force was created comprising representatives of the Labour Department, the Immigration Department and the Police to tackle alleged cases of underpayment of wages of foreign domestic helpers and malpractices of employment agencies. It asks the Government to provide information on the number and nature of complaints lodged by migrant workers and the malpractices by employment agencies detected as well as the penalties imposed and remedies provided.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. Article 6 of the Convention. Equality of treatment. The Committee recalls that at its 288th Session (November 2003) the Governing Body approved the report of the tripartite committee set up to examine a representation made by the Trade Union Congress of the Philippines (TUCP), under article 24 of the ILO Constitution, alleging non-observance by China of Convention No. 97 with respect to the Special Administrative Region (SAR) of Hong Kong. The allegations related to certain measures approved by the Government of Hong Kong SAR affecting the wages and the social security rights of foreign domestic workers and which were harmful for Filipino workers and in violation of Article 6 of the Convention. The Governing Body had concluded that the proposed residence requirement of seven years in Hong Kong SAR in order to be eligible to public health-care services would be too long and that the automatic exclusion of foreign domestic helpers from these services would contravene Article 6(1)(b) of the Convention. Furthermore, the Governing Body had found that imposing an employees’ retraining levy of HK$400 on the employers of all imported workers and foreign domestic workers whose wages were already the lowest amongst migrant workers, while at the same time reducing the Minimum Allowable Wage (MAW) of these foreign domestic workers with the same amount, would not be equitable.

Equality of treatment with respect to social security

2. In its previous observation, the Committee followed up the Governing Body’s request to the Government not to implement the proposed measure to apply a residence requirement of seven years and to take the necessary steps to ensure that the social security provisions in the standard contract for foreign domestic helpers and imported workers were strictly enforced. The Committee notes that the Government is still considering the application of a seven-year residence rule to all immigrants for eligibility for public health-care benefits. The Government insists that imported workers and foreign domestic workers would not be affected by this measure because they would continue to be provided with free medical care by their employers under the standard employment contract. The Government adds that foreign domestic workers and imported workers failing to obtain free medical treatment from their employers could always lodge a complaint with the Labour Department or the Labour Tribunal. For those genuinely lacking the means to pay for medical services in public hospitals and clinics, the Social Welfare Department or Hospital Authority has the discretion to waive the fees and charges.

3. While acknowledging the explanations given by the Government, the Committee recalls that the principle of equal treatment under Article 6(1)(b) of the Convention concerns equality of treatment with respect to social security of all migrant workers with nationals. It is concerned that while the contractual protections provided with regard to medical treatment may be sufficient in some instances, they may not cover all the instances for which the need to access public health-care services would be indispensable and as such deprive certain migrant workers, especially those with lower wages, from their right to enjoy health-care benefits available to national workers. Noting that the Government is still considering the details for the implementation of the policy, the Committee urges the Government once again to review its proposal to apply a seven-year residence requirement for eligibility for public health care, especially its impact on the equality of treatment between nationals and non-nationals as regards social security. Please also provide information on the estimated number of imported workers and foreign domestic helpers that are currently making use of public health-care services.

4. Further to the above, the Committee notes the efforts by the Hong Kong Government to publicize the statutory and contractual rights and benefits of foreign domestic helpers and to help them to lodge complaints. It asks the Government to provide information on the number of complaints received from imported workers and foreign domestic helpers by the Labour Department with regard to non-compliance with the social security provisions of the standard employment contract, and the remedies provided in case of non-compliance.

Equality of treatment with regard to remuneration

5. In its previous observation, the Committee had followed the Governing Body in its request to the Government to provide information on any planned or ongoing review of the wage and levy policies, taking into account the principle of equality of treatment between nationals and non-nationals laid down in Article 6(1)(a) of the Convention, and the principles of proportionality and equity. The Government also has been asked to provide further information on: (a) the wages of local domestic helpers and of local employees in comparable jobs; (b) on any underpayment claims made by foreign domestic workers; and (c) on the impact of the measures taken by the Government to encourage these workers to forward complaints.

6. The Committee thanks the Government for its explanation on the underlying economic reasons for the adopted wage and levy policies but must point out that these explanations had already been taken into account by the Governing Body in its examination of the representation made by the TUCP. The Committee notes the Government’s statement that it is not in a position to provide statistics on wages of full-time live-in local domestic helpers as their number is negligibly small and local domestic helpers mostly service households that do not require live-in workers. As for statistics on comparable categories of local employees working in elementary occupations, the Government merely states that they have suffered from a higher wage reduction (16 per cent) than the reduction bore by foreign domestic helpers (11 per cent). The Committee recalls that in order to reach definite conclusions as to whether Article 6(1)(a) of the Convention is fully applied in Hong Kong SAR, it would need statistical data, disaggregated by sex on the wages of local domestic workers and other local employees in elementary occupations. It therefore urges the Government to provide this information in its next report and to indicate the impact of the abovementioned wage and levy policies on the equality of treatment between nationals, on the one hand, and imported migrant workers and foreign domestic helpers, on the other.

7. With regard to the points raised by the Indonesian Migrant Workers Union (IMWU), and the Asian Domestic Workers Union (ADWU) in their communication of January 2003 regarding the possible underpayment of foreign domestic helpers as a result of the wage and levy policies, the Committee notes that between June 2002 and May 2004, the Labour Department has handled 287 claims involving underpayment of wages and that 193 of them were subsequently referred to the Labour Tribunal or Minor Employment Claims Adjudication Board. While appreciating the measures indicated by the Government in its report to encourage foreign domestic helpers to lodge complaints and the assistance provided to these workers in recovering underpaid wages, the Committee would welcome specific information comparing the number of underpayment claims received before and after the entering into force of the abovementioned measures in April and October 2003, and on the number of these claims that have actually resulted in compensation for the underpaid wages of the foreign domestic workers concerned.

Equality of treatment with regard to conditions of work

8. With regard to comments by the IMWU and the ADWU on the vulnerability of foreign domestic workers, especially Indian, Indonesian and Sri Lankan domestic workers, to physical, mental and sexual abuse and violations of their standard employment contract, the Committee notes the commitment expressed by the Government to step up the protection of the labour rights of foreign domestic workers. It also notes the information provided by the Government on the sentences imposed on a number of employers for abusing foreign domestic workers, and on measures taken to raise awareness amongst employers and migrant workers with respect to their contractual and statutory rights and obligations. The Committee asks the Government to continue to provide information on the measures it is taking to prevent and punish abuse of migrant workers, especially foreign domestic workers, and the impact of these measures on their conditions of work. Please also provide information on the number and nature of complaints received by the Labour Department, the Police and Immigration Department, and the Labour Tribunal, as well as the penalties imposed and the remedies provided.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Further to its observation, the Committee asks the Government to provide, in its next report, information on the following points.

1. Article 5(b) of the Convention. The Government states in its report that medical attention is available for most immigrant workers on board aircraft or seagoing passenger vessels. For foreign domestic workers and imported workers, free medical care after arrival is provided by employers. It is also mentioned that immigrant workers can receive medical treatment at public hospitals or clinics. In light of the proposed measure by the Hong Kong Administration to exclude imported workers from public health care benefits in future, including foreign domestic workers who have not resided in Hong Kong (SAR) for more than seven years, and the conclusions and recommendations of the Governing Body (GB.288/17/2, paragraphs 44 and 45) in this regard, the Committee asks the Government to indicate whether imported workers continue to be entitled to receive medical treatment at public hospitals and clinics. As there is no reference to the members of the workers’ families, the Government is also requested to provide information on the medical services available for the workers’ families with its next report.

2. With respect to social security, the Committee notes from the information previously provided by the Government that there is no distinction between local and foreign workers with regard to work-related injuries/death benefits (under the Employees’ Compensation Ordinance), or with regard to benefits for sickness, maternity and unemployment in the form of severance payments (under the Employment Ordinance). Please confirm that there is no distinction with respect to the other grounds mentioned in Article 6(b) such as invalidity, old age and family responsibilities.

3. Article 11. The Committee would be grateful if the Government would specify what persons are regarded to be "frontier workers".

4. The Committee asks the Government to continue to provide statistical data concerning foreign workers employed in Hong Kong and to communicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention. The Committee also asks the Government to state whether courts of law or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

[The Government is asked to report in detail in 2004.]

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. The Committee notes that at its 288th Session (November 2003), the Governing Body of the ILO approved the report of the tripartite committee set up to examine the representation alleging non-observance by China of Convention No. 97 with respect to the Special Administrative Region (SAR) of Hong Kong, made under article 24 of the ILO Constitution by the Trade Union Congress of the Philippines (TUCP). The complaint concerned allegations that the Hong Kong administration approved certain measures that were harmful for Filipino workers and in violation of Article 6 of the Convention which provides for equality of treatment between migrant workers and nationals as regards remuneration, social security, employment taxes and access to legal proceedings. The specific measures included: (a) the reduction of the Minimum Allowance Wage (MAW) of foreign domestic workers by HK$400, effective April 2003; (b) the introduction of an employees’ retraining levy by HK$400 imposed on employers of these workers, effective 1 October 2003; and (c) the possible exclusion of foreign domestic workers, who have not resided in Hong Kong SAR for at least seven years, from subsidized public health care services (see GB. 288/17/2). The Committee also notes the joint communication by the Indonesian Migrant Workers Union (IMWU), and the Asian Domestic Workers Union (ADWU) dated 15 January 2003, concerning the application of the Convention in Hong Kong SAR, which was sent to the Government of China on 27 February 2003 for its comments thereon, and which it will address in points 5 and 6 below.

2. The Committee notes that the Governing Body concluded that with regard to the proposed measure to exclude in future foreign domestic helpers, who had not resided for at least seven years in Hong Kong SAR, from public health care services, the residence requirement of seven years would be too long and the automatic exclusion of these workers from all public health care benefits would contravene Article 6(1)(b) of the Convention. It urged the Government not to take this particular measure and to take all necessary steps to ensure that the social security provisions of the standard employment contract are strictly enforced.

3. The Governing Body further determined that insufficient information was provided by both the complainant organization and the Government to permit it to reach any definite conclusions as to whether the measures to reduce the MAW of foreign helpers and to impose an employees’ retraining levy on the employers of these workers contravened Article 6(1)(a) of the Convention. Nevertheless, the Governing Body believed that the imposition of the same levy on the employers of all imported workers, including domestic workers whose wages are already the lowest amongst migrant workers, while at the same time reducing the MAW wage of these workers with the same amount, would not be equitable. It urged the Government to review the above-described levy and minimum wage policies on imported workers, especially foreign domestic workers, taking into account the requirement of Article 6 of the Convention that non-nationals shall not be treated less favourably than nationals, and the principles of equity and proportionality. It also invited the Government to include detailed information on the wages paid to local domestic workers and any other comparable categories of local employees that would allow comparisons to be made, and to provide updated information on the number of underpayment complaints made by domestic workers, as well as the impact of the measures taken by the Government to encourage these workers to forward such complaints, since the entry into force of the abovementioned measures. The Governing Body asked that the Committee of Experts on the Application of Conventions and Recommendations to continue to examine this matter (GB/288/17/2, paragraph 45).

4. The Committee follows the Governing Body in its conclusions as regards the abovementioned measures taken by the Hong Kong Administration concerning foreign domestic workers. It requests the Government to provide full information in its next report on: (a) the access to public health care services of foreign domestic helpers who have not resided for at least seven years in Hong Kong SAR; (b) the enforcement of the social security provisions of the standard employment contract; (c) any ongoing or planned review of the above-described levy and minimum wage policies on imported workers, especially foreign domestic workers, taking into account the Committee’s conclusions and recommendations as to the requirements of Article 6 of the Convention that non-nationals shall not be treated less favourably than nationals, and the principles of equity and proportionality; and (d) the wages paid to local domestic workers and any other comparable categories of local employees, as well as information on the number of underpayment complaints made by foreign domestic helpers and on the impact of the measures taken by the Government to encourage these workers to forward such complaints.

5. With regard to the comments made by the IMWU and the ADWU, the Committee notes the allegations that foreign domestic workers are particularly vulnerable to abuse and violations of their employment contracts and are facing problems such as payment of excessive fees, long working hours, denial of rest days, and physical, mental and sexual abuse and the underpayment of wages, the latter being particularly problematic for Indian, Indonesian and Sri Lankan domestic workers. The IMWU and the ADWU also allege that certain proposed or existing government policies discriminate against foreign domestic workers, such as the policy restricting employment of migrant workers in domestic work, the rule according to which foreign domestic helpers have to leave Hong Kong within two weeks after the termination of their contract, the proposals to set a quota for foreign domestic workers, the ban on live-out arrangements and the recent tax imposed on the employment of foreign domestic helpers. The Committee notes that the allegations made by the IMWU and AMWU on the underpayment of wages and the imposition on employers of foreign domestic workers of an employees’ retraining tax, concern allegations that are related to those made by the TUCP, and which were addressed in points 1, 3 and 4 of the present observation.

6. With regard to the point raised by the AMWU and the IMWU on the rule according to which foreign domestic helpers have to leave Hong Kong within two weeks after the termination of their contract ("two-week rule"), the Committee refers to its previous comment in which it noted the information in the Government’s report that the purpose of the "two-week rule" was to deter foreign domestic helpers from overstaying and taking up unauthorized work. It noted that the rule was exercised with flexibility and that in some cases (financial difficulties of, or abuse by, the employer) foreign domestic helpers may be allowed to change employers without returning to their home country. It also noted that foreign domestic helpers were allowed to apply for an extension of stay in Hong Kong (SAR) from the Immigration Department, to facilitate their pursuing claims at the Labour Department or attending civil proceedings in court. The Committee asks the Government to supply further information regarding the practical application of this possibility, including the number of applications for extension and the reasons for refusal by the Immigration Department. It also asks the Government to provide detailed information on the other allegations made by the IMWU and the ADWU concerning violations of the employment contract of foreign domestic workers and physical, sexual and mental abuse of these workers, as well as the abovementioned existing or proposed policies that are alleged to be discriminatory against foreign domestic workers.

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

[The Government is asked to report in detail in 2004.]

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Commission takes note of the information supplied by the Government in its report.

1. Article 5(b) of the Convention. The Government states in its report that medical attention is available for most immigrant workers on board aircraft or seagoing passenger vessels. For foreign domestic workers and imported workers, free medical care after arrival is provided by employers. It is also mentioned that immigrant workers can receive medical treatment at public hospitals or clinics. As there is no reference to the members of the workers’ families, the Government is requested to provide information on the medical services available for the workers’ families with its next report.

2. Article 6, paragraph 1. The Committee notes from the Government’s report that the statutory employment benefits and protection enjoyed by the immigrant workers include, according to the Employment Ordinance, entitlement to rest days, holidays with pay and paid annual leave, but do not cover remuneration as a whole. Regarding contractual wages, the Committee notes the information on foreign domestic workers and imported workers, as of 31 May 2002, according to which the minimum allowable wage of a foreign domestic helper is HK$3,670, whereas the salary of an imported worker should be broadly comparable to the median wages enjoyed by local workers with similar duties. The Committee would be grateful if the Government would provide statistical data in this respect for each professional category in order to be able to draw comparisons.

3. The Committee notes from the Government’s report that the purpose of the "two-week rule" is to deter foreign domestic helpers from overstaying and taking up unauthorized work. It notes that the rule is exercised with flexibility and that in some cases (financial difficulties of, or abuse by, the employer) foreign domestic helpers may be allowed to change employers without returning to their home country. It also notes that foreign domestic helpers may apply for an extension of stay in the Hong Kong Special Administrative Region from the Immigration Department to facilitate their pursuing claims at the Labour Department or attending civil proceedings in court. The Committee would be grateful if the Government would provide further information regarding the practical application of this possibility, including the number of applications for extension and the reasons for refusal by the Immigration Department.

4. With respect to social security, the Committee notes from the Government’s report that there is no distinction between local and foreign workers with regard to work-related injuries/death benefits (under the Employees’ Compensation Ordinance), or with regard to benefits for sickness, maternity and unemployment in the form of severance payments (under the Employment Ordinance). Please confirm that there is no distinction with respect to the other grounds mentioned in Article 6(b) such as invalidity, old age and family responsibilities.

5. Article 11. The Committee notes the information provided by the Government. However, it would be grateful if the Government would specify what persons are regarded to be "frontier workers".

6. The Committee asks the Government to continue to provide statistical data concerning foreign workers employed in Hong Kong and to communicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention. The Committee also asks the Government to state whether courts of law or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Commission takes note of the information supplied by the Government in its first report.

1. Article 6, paragraph 1. Recalling that under paragraph 1 of this Article, every State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters enumerated in subparagraphs (a) to (d) of this Article, the Committee would be grateful if the Government would indicate the measures taken or envisaged to ensure that women migrant workers are treated on a par with their male counterparts, foreign or otherwise, in respect of working and living conditions, social security, work-related taxes, and access to the justice system - in view of the growing feminization of migration for employment (see paragraphs 20-23 and 658 of the General Survey of 1999 on migrant workers).

2. In this context, the Committee would be grateful if the Government would give detailed information on the situation of foreign domestic workers (which are mainly women) and on any monitoring mechanisms to prevent abuse against them. The Committee would appreciate if the Government would supply up-to-date information on their situation with respect to maternity protection under Article 6(b) of the Convention. Moreover, the Committee would appreciate receiving further information on the new conditions of stay (NSC) implemented by the Government and its impact on the situation of the foreign domestic workers. Considering that, according to the NSC, foreign domestic workers are required to leave Hong Kong within two weeks of the termination date of their contract, the Committee asks the Government to indicate whether, and by what means, migrant workers have a right of access to legal recourse that is no less favourable than that available to nationals, for example if they wish to challenge a decision of unfair dismissal.

3. The Committee asks the Government to provide statistical data concerning foreign workers employed in Hong Kong and to communicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention. The Committee also asks the Government to state whether courts of law or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes with interest the detailed report supplied by the Government concerning the application of the Convention. It requests the Government, in accordance with point V of the report form, to continue supplying general information on the manner in which the Convention is applied.