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.