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style='font-weight:normal'>(notification: 1997)

With reference to its observation, the Committee wishes to raise the following additional point.

Articles 10, 20 and 21 of the Convention. Availability of statistics of  industrial and commercial workplaces liable to labour inspection and of the number of workers covered. With reference to its general observation of 2009, the Committee notes the information provided by the Government on the various sources of information used by the labour inspectorate in its strategic planning, policy formulation and identification of problems (database of establishments which have been visited by labour inspectors; collaboration with social partners and other law enforcement agencies; occupational safety and health management information system maintained by the Occupational Safety and Health Branch of the Labour Department; Licensing Information Management System maintained by the Radiation Board).

The Committee recalls the interest of having available all the data required by Article 21 of the Convention for inclusion in an annual inspection report so that the report may reflect as faithfully as possible the scope, coverage and effectiveness of the labour inspectorate and allow for the elaboration of accurate impact analyses and needs assessments with a view to the progressive improvement of the functioning of the labour inspection system. The availability of data on the number of industrial and commercial workplaces liable to labour inspection and of the number of workers covered is indeed essential in making a comprehensive assessment of the impact of the labour inspection system and identifying possible areas for improvement, including in relation to the available human and material resources, as provided for in Article 10(a)(i) and (ii) of the Convention. The Committee therefore requests the Government to take measures to foster inter-institutional cooperation for the establishment of a register of workplaces liable to labour inspection, and to keep the ILO informed of any progress in this regard.

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style='font-weight:normal'>(notification: 1997)

The Committee notes the annual report of the Labour Department for 2008 which contains detailed information and figures on labour inspection activities and results.

Articles 3 and 17 of the Convention. Additional functions entrusted to labour inspectors. The Committee’s previous comments concerned the need to ensure that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allow them to arrest workers on the grounds of their illegal residence situation.

The Committee notes the Government’s response to the effect that the primary duty of the labour inspectors in the Hong Kong SAR has been and will continue to be the enforcement of legislative provisions relating to the conditions of work and protection of workers; the number of joint operations between labour inspectors, the police and the immigration department was relatively small compared to the total number of workplace inspections for 2008 and 2009: 186 and 217 joint operations compared to 132,525 and 139,718 inspections in 2008 and 2009 respectively. The Committee notes from the 2008 Labour Department Annual Report, however, that in addition to the collaboration of the labour inspectors in joint operations, most workplace inspections (131,835 out of 132,525 in 2008) include a control of employees’ proof of identity and employee records to deter irregular employment. It also notes that there is no information in the Annual Report on the results of the workplace inspections or the joint operations in terms of possible arrests and imprisonment of foreign workers who did not possess the necessary residence authorization. According to the Government, the participation of labour inspectors in enforcement actions against irregular employment serves to safeguard the rights and benefits of all workers, given that undocumented workers are often provided with less favourable working conditions due to their vulnerable status, and their recruitment could therefore lead to a generalized lowering of terms and conditions of work if not combated. The principal role of labour inspectors in the joint operations is to collect sufficient evidence on the irregular employment activities for the ultimate purpose of securing the successful prosecution of the unscrupulous employers. Labour inspectors have no power of arrest; the arrest of the undocumented workers and their employers during joint operations and the subsequent investigation for the suspected offences of irregular employment are carried out by the police force or the immigration department.

The Committee recalls that the role of the labour inspectorate, pursuant to the provisions of the Convention, is in principle to monitor not the legality of the employment relationship but the conditions in which the work is performed. In paragraph 77 of its General Survey of 2006 on labour inspection, the Committee recalled that neither Convention No. 81 nor the Labour Inspection (Agriculture) Convention, 1969 (No. 129), contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. In paragraph 161 of the abovementioned General Survey, the Committee observed that, in view of the growing numbers of foreign and migrant workers in many countries, the labour inspectorate is often asked to cooperate with the immigration authorities and that such cooperation should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions. In this respect, it should be emphasized that the expression “while engaged in their work” used in Article 3(1)(a), of the Convention indicates that the protection afforded by the labour inspection must be provided to all workers for the period of their employment relationship; in order to remain in conformity with the purpose of their duties, the action taken by inspectors should enable the implementation of legal proceedings against employers guilty of contraventions, entailing not only the imposition of adequate penalties in accordance with the various categories of contraventions, but also the requirement to pay any outstanding sums owed to the workers concerned for the actual duration of their period of employment. The Committee considers that the financial consequences (fines and settlement of outstanding wages) resulting from the actions of the labour inspectorate, can constitute an effective deterrent against the employment of persons in an irregular situation with regard to labour legislation. In any case, a role for the labour inspectorate consisting of assisting the police and immigration authorities to target workers suspected of being “illegal” is in total contradiction with the protective function entrusted to labour inspectors by the Convention.

The Committee therefore once again urges the Government to take the necessary measures as soon as possible to ensure that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allows them to arrest workers on the grounds of their irregular residence situation. The Government is also asked to ensure that the collaboration of labour inspection officers with the said authorities is limited to legal proceedings against employers found to be in violation of the legal provisions relating to conditions of work, and the protection of workers while engaged in their work, and to inform the ILO of the action taken to this end and the results achieved.

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normal'>(notification: 1997)

The Committee notes the Government’s report for the period 1 June 2006 to 31 May 2008 in reply to its previous comments. It also notes the annual reports of the Labour Department for 2006 and 2007 which contain detailed information and figures on labour inspection activities and results. The Committee notes with interest in particular the activities and results achieved in the framework of the Safety and Health at Work programme in the most hazardous activities, such as industry, construction, boilers, etc. Detailed information on the subject is available through the web site link at www.labour.gov.hk/eng/osh/content.htm.

Article 3, paragraph (a) and (b), Articles 14 and 18 of the Convention. Enforcement and educational activities aimed at ensuring the application of legal provisions relating to work conditions of work. The Committee notes with interest that, according to the annual report for 2006, a key element in the enforcement of the occupational safety and health legislation is the provision of advice on accident prevention. Among other activities, special promotional visits were undertaken to encourage employers to adopt a self-regulatory approach to the management of risks at the workplace and regular enforcement inspections were carried out to various workplaces to monitor whether those responsible have observed all the related statutory requirements set out in safety legislation. Television and radio announcements, leaflets, posters, newspapers, the departmental homepage and seminars on the Compensation Ordinance were used to strengthen the promotion of the timely reporting of work accidents by employers. Promotional activities have focused on the statutory obligation of employers to take out insurance policies covering their liability for injury at work in respect of their employees. The Committee notes with satisfaction that blitz operations targeting various high-risk work activities were conducted not only on normal working days, but also at night and during holidays, to detect and clamp down on offending contractors. The annual report also indicates that establishments with a poor record of safety performance are still under close surveillance, which has resulted in significant improvements.

Similar territory-wide blitz operations and inspections were conducted to detect wage offences and resulted in various penalties, including custodial sentences in three cases in 2006. The annual report for 2007 indicates that seven custodial sentences were imposed during territory-wide inspection campaigns launched with the collaboration of trade unions and targeted at offence-prone trades for the non-payment of wages through an early warning system. The Committee notes with interest the indication in the annual report that vigorous inspections have been carried out of workplaces in which government service contractors employ non-skilled workers with a view to protecting their statutory rights and benefits. As a result of the concerted efforts of the Labour Department and procuring departments through increased monitoring and enforcement, the annual report indicates that there has been a great improvement in compliance with labour laws.

Article 3, paragraph 2, and Article 17. Additional functions entrusted to labour inspectors. Objectives of the Convention. In its previous comments, the Committee noted in the Annual Report of the Labour Department for 2005 that joint operations were carried out by the labour inspectorate, the police and the Immigration Department, leading to the arrest of 538 illegal workers and 237 employers suspected of employing illegal workers. The Committee also noted that such operations had led to the imprisonment of foreign workers who do not possess the necessary residence authorization. It noted in the annual report an illustration of suspected illegal workers being arrested, sitting on the ground with their faces to the wall. The Committee expressed its concern that the exercise by labour inspectors of duties related to the monitoring of the illegal immigration of workers could be a serious obstacle to the discharge of their duties of supervising conditions of work and the protection of workers. Referring to paragraph 78 of its General Survey of 2006 on labour inspection, it asked the Government to take measures aimed at re-establishing the primary duties of the labour inspectorate, and limiting its role in the enforcement of the legislation respecting the illegal immigration of workers to the extent necessary for the prosecution of employers who are in breach of the rules and for the protection of the workers concerned.

The Committee notes that, according to the Government, enforcement actions, such as the arrest and detention of illegal workers suspected of breaches of the Immigration Ordinance were carried out by officers of other law enforcement authorities, such as the police and the Immigration Department. The Government further indicates that the role of labour inspectors in combating illegal employment has not posed any obstacle to the discharge of their duties in enforcing legislative provisions on conditions of work and the protection of the workers. However, the Committee is bound to note that, according to an illustration in the annual report of the Labour Department for 2006, subtitled “labour inspectors and the police detecting suspected illegal workers in a joint operation” the Government’s statement is not in accordance with reality. The purpose of the joint operation was clearly contrary to the objective of the protection of the worker shown in the photograph referred to above. The worker appears to have both hands tied behind his back and two men are pushing him forward with another figure preceding them who is clearly a labour inspector. Such a situation is not acceptable, as the Convention provides for the protection by the labour inspection system of workers engaged in their work, regardless of their status in relation to immigration laws. The fact that the role of the labour inspector consists, on the one hand, of targeting in the workplace workers suspected of being “illegal” and, on the other hand, of witnessing their mistreatment is in total contradiction with the protective function entrusted to labour inspectors by the Convention. Noting in the annual report for 2007 that 170 further similar operations were undertaken with the police and the Immigration Department, the Committee is bound once again to draw the Government’s attention to the fact that any cooperation of the labour inspectorate with immigration authorities should be carried out cautiously, bearing in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions (paragraph 161 of the General Survey on labour inspection). The Committee therefore once again urges the Government to take the necessary measures as soon as possible to ensure that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allow them to arrest workers on the grounds of their illegal residence situation. The Government is also asked to ensure that the collaboration of labour inspection officers with the said authorities is limited to legal proceedings against employers found to be in violation of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and to inform the ILO of the action taken to this end and the results achieved.

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The Committee notes the Government’s report for the period from 1 June 2004 to 31 May 2006.

1. Development of the system and action of the labour inspectorate. The Committee notes with interest the detailed information contained in the CD‑ROMs on the activities of the Labour Department for the years 2003–04 and 2005, and particularly the measures taken in the various fields to improve the conditions of work in establishments, taking into account new phenomena and risks and technological developments. It also notes with interest that a telephone line is now available 24 hours a day for employers and workers so that they can seek and receive technical information and advice on issues covered by the Convention (Article 3, paragraph 1(a), of the Convention), and to register complaints.

2. Article 7. Reinforcement of training for labour inspectors. The Committee also notes with interest that training programmes have been established to reinforce the professional competence, knowledge and skills of inspectors responsible for occupational safety and health. The training of Labour Department officials also includes participation in international conferences, detachment to overseas occupational safety and health authorities and seminars on specific themes, such as civil engineering, electrical engineering, mechanical engineering, chemical safety and plant and machinery operation, as well as information technology and legal issues.

3. Article 3, paragraphs 1(a) and 2, and Article 17. Purpose of supervision by the labour inspectorate and other controls. In its previous comments, the Committee requested the Government to provide detailed information on the manner in which it was ensured that the duty of controlling the illegal employment of workers, which is entrusted to labour inspectors, does not prejudice the performance of their primary duties, which are set out in Article 3, paragraph 1. The Government indicates in reply that labour inspectors conduct inspections of workplaces to secure the effective enforcement of legal provisions relating to conditions of work and the protection of workers. It specifies that, in conducting such inspections, through interviews with workers and the checking of wages and benefit records, labour inspectors also check the identity of workers on the basis of the records of employees to deter illegal employment. According to the Government, enforcement actions such as the arrest and detention of illegal workers suspected of breaches of the Immigration Ordinance are carried out by officers of other law enforcement authorities, such as the police and the Immigration Department.

The Committee further notes in the Annual Report of the Labour Department for 2005 (point 6.12 of the chapter on employees’ rights and benefits) that labour inspectors carried our 133,014 workplace inspections, of which 131,399 were also conducted to combat illegal employment. Joint operations were carried out by the labour inspectorate, the police and the Immigration Department, leading to the arrest of 538 illegal workers and 237 employers suspected of employing illegal workers. A telephone hotline has also been made available to the public to facilitate the provision of information on illegal employment activities.

The Committee notes that, according to the Government, the actions taken by labour inspectors under the Immigration Ordinance also serve to protect the employment opportunities of local workers so as to better protect the rights and benefits of these workers. However, according to the information contained in the Annual Report for 2005, while national workers who are employed illegally benefit from inspection activities with a view to regularizing their situation in relation to social benefits through the conviction of employers that are in breach of the rules, it would appear that no measures are envisaged in this respect in relation to foreign workers without the necessary residence authorization. Indeed, they are subject to arrest and imprisonment. The annual report contains illustrations of suspected illegal workers being arrested, sitting on the ground with their faces to the wall.

With regard to employers in breach of the Immigration Ordinance, the Government appears to indicate that they are subject to inquiries and prosecution by the police and the Immigration Department. In its General Survey of 2006 on labour inspection, the Committee emphasized that “neither Convention No. 81 nor Convention No. 129 contains any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status”. The Committee supported its views with a reference to the preparatory work for the Labour Inspection (Agriculture) Convention, 1969 (No. 129), observing that most of the member States that expressed views on the issue were of the opinion that, “given the traditionally informal nature of the employment relationship in agricultural enterprises in many countries, the existence of a wage relationship with the operator should be the determining factor in defining the workers covered” by labour inspection (General Survey, paragraph 77). It recommended that cooperation by labour inspection with immigration authorities “should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions” (paragraph 161).

The Committee cannot overemphasize the reasons for which the exercise by labour inspectors of duties related to the monitoring of the illegal immigration of workers can be a serious obstacle to the discharge of their duties of supervising conditions of work and the protection of workers. In paragraph 78 of the General Survey, it observed that since the human and other resources available to labour inspectorates are not unlimited, this would appear to entail a proportionate decrease in inspection of conditions of work in some countries. Efforts to control the employment of migrant workers in an irregular situation require the mobilization of considerable resources in terms of staff, time and material resources, which inspection services can provide only to the detriment of their primary duties. In the view of the Committee, “the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers if it is to be compatible with the objective of labour inspection. 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 the protection of workers” (paragraph 78).

The Committee hopes that the Government will take this guidance and these recommendations into account and that it will be in a position in its next report to indicate the measures adopted with a view to re-establishing the primary duties of the labour inspectorate, and limiting its role in the enforcement of the legislation respecting the illegal immigration of workers to the extent necessary for the prosecution of employers who are in breach of the rules (Article 17 of the Convention) and for the protection of the workers concerned (Articles 2 and 3).

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The Committee notes with interest the detailed information provided by the Government in its report and in the attached CD-ROM, containing the annual report of the Labour Department for 2003.

The Committee notes the information in the Government’s report under Article 3 of the Convention that, besides their main duties provided for by this provision, labour inspectors are entrusted with the control of illegal employment of workers.

The Committee would be grateful if the Government would provide detailed information on the manner in which this duty is performed by labour inspectors and indicate, in particular, the measures taken to ensure that this duty does not prejudice the performance of their primary duties pertaining to conditions of work and the protection of workers while engaged in their work.

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The Committee notes the information provided by the Government in its report. It notes with interest the information given in the Commissioner for Labour's report of 1995 that the relevant international labour Conventions will continue to apply in Hong Kong after 1997 when Hong Kong's sovereignty will revert to China according to an agreement reached in 1987 between the Government of the People's Republic of China and the United Kingdom.

Articles 20 and 21 of the Convention. The Committee notes with interest the detailed information regarding the bulk of the inspection services contained in the Commissioner for Labour's annual reports. The Committee hopes that the Government will continue to provide regularly such detailed and complete annual reports.

Article 25 of the Convention. The Committee has noted the information provided by the Government in its report for the period ending June 1993 concerning labour inspection in commerce. It notes in particular the statement according to which inspection of non-industrial establishments is carried out by labour inspectors to enforce statutory provisions on prohibition of the employment of children, as well as compulsory insurance for employees' compensation and special teams of labour inspectors are dealing with the checking of employees' entitlements such as maternity leave, rest days, sickness allowance, holidays with pay, annual leave with pay, etc. The Committee has also noted the information contained in this regard in the 1994 report of the Commissioner for Labour. The Committee requests the Government to continue to provide information on the evolution of its legislation and practice regarding the provisions of Part II of the Convention stating the extent to which effect has been given, or is proposed to be given, to the said provisions, bearing in mind that under Article 25, paragraph 2, a declaration of exclusion of Part II may be cancelled at any time by a subsequent declaration.

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Articles 20 and 21 of the Convention. The Committee notes that the Commissioner for Labour's annual reports, which contain the information of the bulk of the inspection services, have not been received. It requests the Government to ensure their transmission within the time-limits provided for in Article 20.