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