Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Other comments on C081

Observation

Direct Request

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The Committee notes the information in the Government’s report in reply to the Committee’s previous request concerning Articles 10, 20 and 21 of the Convention on the number of labour inspectors and the availability of statistics of industrial and commercial workplaces liable to labour inspection.

Articles 3(1) and (2) and 17 of the Convention. Additional functions entrusted to labour inspectors. The Committee previously noted that labour inspectors continued to be involved in joint operations which, by granting the police and immigration authorities access to workplaces, allow the latter to arrest workers on the grounds of their illegal residence situation.

The Committee notes the Government’s reiteration that the primary and principal duties of labour inspectors of the Labour Department are to protect the rights and benefits of workers. The Government indicates that it places particular emphasis on deterring employers from employing workers in an irregular situation, and that most operations to address illegal employment is launched by the Hong Kong Police Force and the Immigration Department on their own. The Government indicates that the role of labour inspectors in this framework is to collect intelligence and evidence on suspected illegal employment activities coming to their notice in the course of workplace inspections. This has the objective of securing convictions against law-defying employers, thereby safeguarding the rights and benefits of workers. The Government states that undocumented foreign workers have equal access to the court to pursue their claims, including payment of wages and other employment benefits, as well as compensation for injuries at work. It also indicates that the role of safeguarding workers’ rights takes precedence over the participation in joint operations, and that the labour inspectorate only participated in 629 such joint operations between 2012 and 2014, compared to the undertaking of 442,583 inspections over the same period. In this regard, the Committee recalls that the role assigned to labour inspectors should not jeopardize the performance of their primary duties as defined by the Convention (see the 2006 General Survey on labour inspection (paragraph 78)). The function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers, and this objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers. In this respect, the Committee requests the Government to continue to provide information on the measures it is taking to ensure that the functions relating to the monitoring of workers in an irregular situation do not interfere with the primary duties of labour inspectors or prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. In this regard, it also requests the Government to provide information in relation to considerations given to end the practice of joint inspection visits.

It requests the Government to provide detailed information on the actions taken by the labour inspectorate in relation to foreign workers, where they have been found to be in an irregular situation with regard to their residence status including the number of cases in which foreign workers have been informed about their right to pursue their claims in court and the number of cases in which the Hong Kong Police Force and the Immigration Department have been notified. Please also provide information on the number of cases in which foreign workers in an irregular situation have been granted their due rights (the number of cases submitted to the courts, and the number of case in which workers have been paid outstanding wages and other benefits, etc.), and the role played by labour inspectors in this regard.