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

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

Other comments on C097

Observation

Direct Request

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

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

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

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

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

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