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NORMLEX Home > Country profiles > > Country comments > Texts of comments: China - Hong Kong Special Administrative Region

Comments adopted by the CEACR: China - Hong Kong Special Administrative Region

Adopted by the CEACR in 2021

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee takes note of the reply of the Government of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China to the observations made by the International Trade Union Confederation (ITUC) in 2016.

The Committee also notes the ITUC observations received on 1 and 23 September 2021, referring to issues examined by the Committee in the present comment, as well as the Government’s replies thereto, some of which (those addressing the 1 September observations) were received while the Committee was already in session.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion which took place in June 2021 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by China - Hong Kong Special Administrative Region. The Committee observes that the Conference Committee called on the Government to: (i) provide full information regarding the outcomes of procedures to examine the police action and arrests made in connection with protests which fall under the scope of the Convention; (ii) take all necessary measures to further guarantee the right for workers’ and employers’ organizations to organize their activities in line with the Convention and to ensure that trade union leaders and trade union members conducting lawful trade union activities are not arrested, detained or prosecuted; (iii) keep under review, in consultation with the social partners, the application of the National Security Law so that the rights of workers, employers and their organizations under the Convention are fully protected; and (iv) continue to provide up-to-date information on the impact that the National Security Law has on the application of the Convention.

Trade union rights and civil liberties. In its last comment, having taken note of allegations of police repression and arrests made in connection to public protests, the Committee requested the Government to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of civil liberties. The Committee notes the Government’s indication that: (i) section 27 of the Basic Law and section 18 of the Hong Kong Bill of Rights recognize the right to freedom of association, the right to form and join trade unions and the right to strike; and (ii) the Trade Unions Ordinance seeks to promote sound trade union management and protect the rights of trade union members. The Government highlights that it attaches great importance to ensuring the right of trade unions to organize their activities and formulate their programmes to defend the occupational interests of their members. It points out, however, that in exercising the rights enshrined in the Convention, everyone shall respect the law of the land. The Government indicates that, while the right of peaceful assembly is protected under the Basic Law, such right is not absolute and may be restricted by law in the interest of national security, public safety, and public order and for the protection of the rights and freedoms of others. It further indicates that the duty of the Police is to maintain law and order as well as to prevent and detect crime. The Government further indicates that Hong Kong authorities have been handling and will continue to handle all criminal offences in a fair and impartial manner and in strict accordance with the law, without considering if those concerned are trade unionists. It adds that authorities strive to protect the rights of detainees, including the right to receive legal assistance, communicate with a relative or friend, receive copies of written records under caution, and receive food and drinks and medical attention. The Government points out that developments since the implementation of the National Security Law (NSL) have been characterized by safety, security and stability and that residents are no longer under the threat of street violence and personal intimidation. It adds that the recent arrest of members of a terrorist group plotting to set bombs in public places illustrates the genuine need for the NSL to prevent and suppress acts and activities endangering national security.

While taking due note of the Government’s indications, the Committee notes that the ITUC denounces an acute decline in the respect for civil liberties and freedom of association. The ITUC alleges that trade union rights are seriously under attack and that trade unionists are persecuted for defending the rights of workers and for carrying out legitimate trade union activities. The ITUC refers specifically to the arrest of Mr Lee Cheuk Yan, General Secretary of the Hong Kong Confederation of Trade Unions (HKCTU), noted by the Committee in its last comment, who is facing prosecution for 10 criminal offences in relation to public protests. The ITUC also alleges the arrest of 55 pro-democracy activists and politicians in connection with political party primary polls held in 2020, including three trade union leaders, Ms Carol Ng, Chairperson of the HKCTU, Ms Winnie Yu, Chairperson of the Hospital Authority Employees Alliance (HAEA) and Mr Cyrus Lau, Chairperson of the Nurses Trade Union. The Committee notes that the abovementioned arrests are the subject of a complaint made by the ITUC and examined by the Committee on Freedom of Association (CFA) (Case No. 3406). The Committee recalls in this regard that the CFA requested the Government to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of civil liberties. It also urged the Government to take all appropriate measures to ensure that Mr Lee Cheuk Yan is not imprisoned for having participated in a peaceful demonstration defending workers’ interests (see 395th report, June 2021, para 173).

The Committee notes that the ITUC also alleges the arrest, on 22 July 2021 of five executives of the General Union of Hong Kong Speech Therapists (GUHKST) in relation to a publication of picture books for children with speech problems published by the union with stories based on the pro-democratic protests of the healthcare workers in 2019 and 2020. The ITUC indicates that all five union executives were put under custody pending the hearing scheduled for 24 October 2021. The Committee notes the Government’s indication that GUHKST’s chairperson and executive committee members were charged for conspiring to print, publish, distribute, display or reproduce seditious publications, which glorify unlawful acts, bring hatred against the HKSAR Government and the administration of justice, and incite other people to commit violence, which are not lawful trade union activities. The Committee recalls that the resolution adopted by the Conference in 1970 concerning trade union rights and their relation to civil liberties reaffirms the essential link between civil liberties and trade union rights, which was already emphasized in the Declaration of Philadelphia (1944), and enumerates the fundamental rights that are necessary for the exercise of freedom of association, with particular reference to: (i) the right to freedom and security of person and freedom from arbitrary arrest and detention; (ii) freedom of opinion and expression, and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (iii) freedom of assembly; (iv) the right to a fair trial by an independent and impartial tribunal; and (v) the right to protection of the property of trade union organizations (see the 2012 General Survey on the fundamental Conventions, paragraph 59). Expressing the firm expectation that the Government will ensure full respect of the above, and noting the ITUC’s indication that the hearing was scheduled for 24 October 2021, the Committee requests the Government to provide full and detailed information on the outcome and transmit copies of the relevant court judgments.

Articles 2, 3, 5 and 8 of the Convention. Application of the National Security Law. In its last comment, having noted the concerns expressed by the ITUC and the HKCTU on the possible negative effects that the application of the NSL could have on the rights enshrined in the Convention, the Committee requested the Government, in consultation with the social partners, to monitor and provide information on the impact that the Law had already had and may continue to have on the application of the Convention. The CFA referred to this matter in case No. 3406 mentioned above, and drew its legislative aspects to the attention of the Committee (see 395th report, June 2021, paragraph 173). The Committee notes that the Government indicates in this respect that: (i) it appreciates that at the Conference Committee both the worker and employer representatives from the HKSAR shared the view that the NSL is necessary for restoring stability; (ii) the law reverted the chaotic situation enabling the economy and people’s livelihood to revive; and (iii) developments since the implementation of the NSL have been characterized by safety, security and stability. The Government indicates that the NSL has not amended any provision of the Basic Law, that all human rights provisions of the Basic Law have remained untouched and that in fact the NSL clearly stipulates that human rights shall be respected and protected in safeguarding national security. The Government also emphasizes that all persons shall observe the requirements under the law and shall not endanger national security or public safety, public order or the rights and freedoms of others in exercising their rights. It indicates in this respect that section 2 of the NSL stipulates that the provisions in sections 1 and 12 of the Basic Law on the legal status of the HKSAR are the fundamental provisions in the Basic Law, and that no institution, organization or individual in the HKSAR shall contravene these provisions in exercising their rights and freedoms. The Government indicates that it has been carrying out relevant work in respect of its constitutional responsibility to enact legislation on section 23 of the Basic Law, including conducting legal research in relation to national security. The Committee also takes note of the Government’s indication that it will draw up effective and pragmatic proposals and provisions, conduct public consultation properly, formulate appropriate publicity plans, as well as communicate more with members of the public, with a view to explaining clearly the legislative principles and details and avoiding misunderstandings.

While taking due note of the Government’s indications, the Committee notes the ITUC’s allegation that since coming into effect on 30 June 2020, the NSL has been used to intimidate and harass trade unions and that its application has resulted in the deregistration or disbanding of trade unions. The ITUC specifically alleges that: (i) in December 2020, 180,000 civil servants were requested to take an oath and sign on a declaration of loyalty, mentioned in section 6 of the NSL, making it impossible to freely express opinions or join an organization or activities deemed by the authority to be inciting discontent, aggravating social instability or undermining the capabilities of the Government. The Union for New Civil Servants protested against the oath requirement and disbanded itself in January 2021. Civil servants refusing to sign the declarations were suspended or dismissed; (ii) after the Hong Kong Education Bureau ceased recognition and working relations with the Hong Kong Professional Teachers’ Union (HKPTU), the union withdrew from the pro-democracy movement; disaffiliated from Education International and announced on 10 August 2021 its dissolution and closure of teachers’ cooperatives; (iii) the cancellation of the registration of GUHKST was gazetted on 20 August 2021; (iv) on 25 August 2021, the police served notice to Mr Lee Cheuk Yan (currently in prison), as well as 8 other executives of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China to submit under section 43 of the NSL information on activities outside Hong Kong in relation to the Alliance or face a fine and jail term from 6 months to 2 years; (v) the deregistration procedure for the Hospital Authority Employees’ Alliance (HAEA) was invoked with a notice served by the Registrar on 3 September 2021, demanding information on events it had held by 17 September 2021; (vi) in a press conference on 19 September 2021, the HKCTU announced that it would invoke the procedure to disband the trade union centre, following persistent stigmatization, vilification and attack on its trade union activities and the use of security and the judiciary to intimidate and harass its members for exercising trade union rights and civil liberties; (vii) trade unions organizing member-exclusive screenings of films were requested by the Office for Films, Newspapers and Articles Administration to provide details and approvals; (viii) the Hong Kong-based labour organization the Asia Monitor Resource Centre has declared that it will disband itself; and (ix) the support provided by the ITUC to the HKCTU is being categorized as criminal collusion under the NSL.

The Committee takes note that, in its reply to the ITUC’s allegations, the Government indicates that the allegations are factually incorrect and that trade union officials’ freedoms and right to organize activities to promote and defend the occupational interests of trade union members have been and will continue to be fully protected. With respect to the alleged request made to civil servants to take an oath or sign the declaration of loyalty, the Government indicates that this would not affect the civil rights of government employees. In relation to the allegations of the HKPTU, the Government indicates that: (i) the union had engaged in political propaganda under the guise of being a professional education organization, having published teaching resources with contents on civil disobedience; launched territory-wide class and teaching boycotts by teachers, dragging schools into politics, and promoted books that glorify violence; (ii) the Education Bureau ceased recognition and working relations because the union failed to live up to the expectation of a professional education organization; and (iii) the HKPTU initiated voluntary dissolution without any interference from the Registry of Trade Unions. In relation to the allegation concerning Mr Lee Cheuk Yan and the executives of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, the Government indicates that: (i) in order to effectively prevent and suppress offences endangering national security, law enforcement officers need to obtain relevant information about certain foreign or Taiwan political organizations and foreign or Taiwan agents; (ii) pursuant to section 43 of the NSL, the Police issued written notices to the directors of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (including Mr Lee Cheuk Yan) requesting information; (iii) the notice was not issued to Mr Lee in his capacity as a trade unionist, nor does the issuance of such notice necessarily connote wrongdoing or the commission of any offence; and (iv) it is only when the recipient fails to comply with the notice with no valid explanation provided to the court that legal sanctions are imposed. With respect to the allegations on the HAEA, the Government indicates that the Registry of Trade Unions made an inquiry in relation to its activities, which were suspected of being inconsistent with its objects or rules and that the Registry acted in an objective and prudent manner before taking legitimate action in accordance with the Trade Unions Ordinance. In relation to the ITUC’s allegation on the screening of films, the Government indicates that under the Film Censorship Ordinance, any person who intends to exhibit a film (including trade unions, at a place to which members have access) shall submit the film to the Film Censorship Authority for approval. The Government emphasizes that there is absolutely no retrogression or infringement of the right to freedom of association and that the isolated incidents quoted by the ITUC are associated with suspected unlawful activities not related to the exercise of trade union rights or voluntary decisions of the trade unions concerned without any interference from the Government.

While taking due note of the Government’s indication that it will continue to attach great importance to fulfilling its obligations under the Convention, the Committee regrets to note that in spite of its request as well as the request made by the Conference Committee and the CFA, no consultations appear to have taken place with the social partners on the negative effects that the application of the NSL is alleged to have had, and could have, on rights enshrined in the Convention. In addition, while duly noting the statistics supplied by the Government as of 31 October 2021 (1,541 registered trade unions, representing an increase of 66 per cent over end-May 2019), and observing that, according to the Government, such increase of registered trade unions would bear testimony to the free exercise of the rights and freedom of association in the HKSAR, the Committee expresses its concern at the ITUC allegations and observes that, according to publicly available information, the HKCTU, established more than three decades ago, was disbanded on 3 October 2021.

The Committee recalls that the principal objective of the Convention is to protect the autonomy and independence of workers’ and employers’ organizations in relation to the public authorities, both in their establishment and in their functioning and dissolution (see the 2012 General Survey, paragraph 55). It also recalls that employers and workers organizations must be allowed to conduct their activities in a climate that is free from pressure, intimidation, harassment, threats or efforts to discredit them or their leaders. Further recalling that authorities should refrain from any interference which would restrict freedom of association and assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order, the Committee firmly requests the Government to take all necessary measures to ensure in law and in practice the full enjoyment of the rights enshrined in the Convention. It also requests the Government to provide specific information in relation to the application in practice of the NSL. The Committee also requests the Government to provide further details in relation to the public consultations and publications it has indicated it intends to carry out with a view to providing clarity on the applicable legislative principles, and the Committee expects that such activities will provide an opportunity to assess and address any negative effects that the application of the NSL could have on the rights enshrined in the Convention.

C105 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1(a) of the Convention. Imposition of prison sentences involving the obligation to work as a punishment for expressing certain political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted the following legislative provisions, under which penalties of imprisonment (involving compulsory prison labour, pursuant to section 38 of the Prison Rules) may be imposed in situations covered by Article 1(a) of the Convention:

– printing, publishing, selling, distributing, importing, etc., of seditious publications or uttering seditious words (section 10 of the Crimes Ordinance, Cap. 200);
– various violations of the prohibition on printing and publication (sections 18(i) and 20 of the Registration of Local Newspapers Ordinance, Cap. 268; regulations 9 and 15 of the News Agencies Registration Regulations, Cap. 268A; regulations 8 and 19 of the Newspaper Registration and Distribution Regulations, Cap. 268B; regulations 7 and 13 of the Printed Documents (Control) Regulations, Cap. 268C);
– various contraventions of regulations of public meetings, processions and gatherings (sections 17A, 17B, 17E and 18 of the Public Order Ordinance, Cap. 245).

The Committee noted that the UN Human Rights Committee expressed concern about the application in practice of certain terms contained in the Public Order Ordinance, such as “disorder in public places” (as provided for by section 17B) and “unlawful assembly” (as provided for by section 18), which may facilitate excessive restriction on civil and political rights. It also expressed concern about the increasing number of arrests of, and prosecutions against, demonstrators. The Committee also noted the Government’s indication that in August 2017 the Court of Appeal sentenced three persons to six–eight months’ imprisonment in relation to the mass demonstration in 2014 for inciting others to take part in an unlawful assembly, or for taking part in an unlawful assembly under section 18 of the Public Order Ordinance. While noting that the Government reiterated that freedom of the press, as well as freedom of opinion and expression are protected under the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383), the Committee urged the Government to take the necessary measures to ensure that, both in law and in practice, no sanctions involving compulsory labour can be imposed as a punishment for holding or expressing political views.

In its report, the Government indicates that the application of the Convention remains unchanged and that no modification in law and practice has been made. It also states that from 2017 to 2020, except under the Public Order Ordinance, no convictions were recorded under any other provisions mentioned above. According to the Government’s report, four defendants were convicted under section 17A of the Public Order Ordinance for organizing, participating and inciting others to take part in an unauthorized assembly and sentenced to immediate imprisonment from seven months to one year. In this case, the magistrate pointed out that, over 9,000 protestors besieged the Police Headquarters for more than 15 hours in an unauthorized assembly, posing a threat to the personal safety of those at the scene and at the same time causing serious disruption to the traffic for which penalties with deterrence were necessary. The Government also refers to the statement made by the Chief Justice of the Hong Kong Court of Final Appeal during the Ceremonial Opening of the Legal Year 2020, that “we see clear limits in the law to the exercise of rights. The enjoyment or insistence on one’s rights does not, for example, provide any excuse to harm other people or their property, or to display acts of violence”.

The Committee further notes that on 7 January 2021 the United Nations Office of the High Commissioner for Human Rights (OHCHR) voiced deep concerns over the arrests of over 50 individuals under the new National Security Law of 2020. These latest arrests indicate that the offence of subversion under the National Security Law is indeed being used to detain individuals for exercising legitimate rights to participate in political and public life. The OHCHR and the UN independent human rights experts have repeatedly warned that offences such as subversion under the National Security Law, are vague and overly broad, facilitating abusive or arbitrary implementation (UNOHCHR, communication of 7 January 2021). The Committee also refers to its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it raises concerns in relation to the application of the National Security Law.

Referring to its General Survey of 2012 on the fundamental Conventions, the Committee once again recalls that Article 1(a) of the Convention prohibits the use of “any form” of forced or compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The range of activities which must be protected from sanctions involving compulsory labour comprises the freedom to express political or ideological views (which may be exercised orally or through the press and other communications media), as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views. However, certain limitations may be imposed by law on these rights and freedoms, which must be accepted as normal safeguards against their abuse (paragraphs 302 and 303). The Committee considers that it is not necessary to use prison sentences involving compulsory labour to maintain public order. Nevertheless, the protection provided for by the Convention does not extend to persons who use violence, incite to violence or engage in preparatory acts aimed at violence.

The Committee therefore urges the Government to take the necessary measures to ensure that, both in law and in practice, no sanctions involving compulsory labour can be imposed or are imposed as a punishment for peacefully holding or expressing political views, by clearly restricting the scope of the provisions under the Public Order Ordinance, the relevant provisions of the National Security Law as well as the provisions under the Crime Ordinance and other regulations mentioned above, to situations connected with the use of violence, or by repealing penal sanctions involving compulsory labour. The Committee requests the Government to continue to provide information on decisions issued under these provisions in order to assess their application in practice, indicating in particular the facts that gave rise to the conviction, and the penalties applied.

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

C105 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1(c) of the Convention. Punishment for breaches of labour discipline. In its previous comments, the Committee referred to section 21(a) of the Prisons Ordinance (Cap. 234), under which any officer of the Correctional Services Department or other person employed in the prisons, who, after having duly engaged to serve as such, absents himself from his duties, shall be guilty of an offence and shall be liable on conviction to imprisonment for six months (which involves an obligation to work).

The Committee notes the Government’s information that there have been no cases concerning the application of section 21(a) of the Prisons Ordinance. The Committee requests the Government to continue to provide information on the application of section 21(a) of the Prisons Ordinance in practice, supplying copies of the relevant court decisions, if available.

Adopted by the CEACR in 2020

C032 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Part V of the report form. Application in practice. The Committee notes the information on the number of inspections carried out during the period of June 2012 to May 2019, in particular that the Labour Department initiated a total of 51 prosecutions for breaches of the relevant legislation relating to cargo handling on shore. As a result of these inspections, 28 convictions were secured. The Marine Department initiated a total of 495 prosecutions for breaches of the legislation relating to cargo handling on board vessels, out of which 463 convictions were secured. The Committee also notes the statistical information on reported accidents in cargo handling operations, comparing the periods of June 2012 to May 2017 with June 2017 to May 2019 with regard to: (i) dock work on ships/lighters, where the number of fatal accidents fell from 15 to 4 and the number of non-fatal accidents fell from 515 to 144; and (ii) dock work on wharves, where the number of fatal accidents fell from 1 to 0 and non-fatal accidents fell from 26 to 13. The Committee requests the Government to continue providing statistical information on the number of inspections carried out, the number and nature of contraventions reported, the number and causes of occupational accidents reported, as well as any relevant information on the implementation of the Convention in practice.

Prospects for the ratification of the most up-to-date Convention. The Committee takes this opportunity to encourage the Government to follow up on the decision adopted by the Governing Body at its 328th Session (October–November 2016) approving the recommendations of the Standards Review Mechanism Tripartite Working Group, and to consider ratifying the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152), which is the most up-to-date instrument in this subject area. The Committee requests the Government to provide information on any measures taken in this regard.

C098 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 16 September 2020 reiterating matters raised in its observations sent in 2019 and addressed in the present comment. It also notes the observations of the Hong Kong Confederation of Trade Unions (HKCTU) received on 30 September 2020 referring to matters addressed in the present comment and denouncing violations of the Convention in practice, including anti-union transfers and demotions in the context of public protests. The Committee takes note of the reply of the Government in connection to the ITUC and HKCTU’s observations. It notes that the reply mostly concerns matters examined within the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee thus requests the Government to provide its comments on the 2020 HKCTU’s allegations of violations of the present Convention in practice as well as on the 2016 observations from the ITUC and the HKCTU, which also contain allegations of violations of the Convention in practice.

The Committee also notes the Government’s supplementary report provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020), which does not provide new information on pending issues. The Committee therefore reiterates the content of its observation adopted in 2019 and reproduced below.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted the Government’s reference to the drafting of an amendment that would empower the Labour Tribunal to make an order of reinstatement/re-engagement in cases of unreasonable and unlawful dismissal without the need to secure the employer’s consent. The Committee had expressed its expectation that the Bill, which had been under examination for 17 years, would be adopted without any further delay so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and would be effectively enforced in practice. The Committee notes with interest the Government’s indication that, by virtue of the Employment (Amendment) (No. 2) Ordinance, 2018, which amends the Employment Ordinance (EO), the Labour Tribunal and the courts are now empowered, in case of an unreasonable or unlawful dismissal (among others, dismissal by reason of exercising the right to trade union membership or participation in trade union activities), to make a compulsory order for reinstatement or re-engagement without having to secure the agreement of the employer. The Committee observes, however, that, according to the ITUC and the HKCTU, the amended ordinance allows for discretion in ordering reinstatement and the penalty for the employer’s failure to observe a reinstatement is not sufficiently dissuasive to ensure such compliance (three months of the worker’s average salary and not exceeding 72,500 Hong Kong dollars (HKD) (US$9,300)). The Committee also notes the Government’s statement that it accords high priority to investigating complaints on suspected anti-union discrimination but observes that, according to the ITUC and the HKCTU, only two prosecutions of anti-union discrimination resulted in reinstatement since 1974, as it is difficult to prove the employer’s covert intent in criminal proceedings. In light of the above, the Committee requests the Government to provide information on the application in practice of the amended EO, in particular to inform about its impact on the number of reinstatement orders issued by the courts and effectively implemented by the employers. Bearing in mind the allegations made by the ITUC and the HKCTU with regard to anti-union dismissals and threats of dismissals in the context of public protests, the Committee requests the Government to take the necessary measures to investigate any allegations of anti-union discrimination and to impose sufficiently dissuasive sanctions to avoid the occurrence of such acts in the future. The Committee further requests the Government to provide updated statistics on the number and nature of complaints of anti-union discrimination filed to the competent authorities, their follow-up and outcome.

Article 4. Promotion of collective bargaining. The Committee recalls that it had previously referred to the need to strengthen the collective bargaining framework in the light of the low levels of coverage of collective agreements, which were not binding on the employer, and the absence of an institutional framework for trade union recognition and collective bargaining. In its previous comment, the Committee requested the Government, in consultation with the social partners, to step up its efforts to take effective measures, including of a legislative nature, in order to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations. The Committee notes the Government’s indication that: (i) collective bargaining compelled by law is not conducive to voluntary negotiation and there is no consensus on introducing compulsory bargaining in the legislation; (ii) the Labour Department, making use of its conciliation services, encourages employers and employees to draw up agreements on the terms and conditions of employment, which has contributed to harmonious industrial relations; (iii) collective agreements have been reached in certain industries including printing, construction, public bus transport, air transport, food and beverage processing, pig-slaughtering and elevator maintenance; (iv) the Government has been taking numerous measures appropriate to local conditions, both at the enterprise and industry levels, to encourage and promote voluntary negotiation and effective communication between employers and employees or their respective organizations, including through the industry-based tripartite committees; and (v) all the above efforts help foster an environment conducive to voluntary bipartite negotiation between employers and employees or their respective organizations.

While taking due note of the information provided, including on the promotional measures and activities undertaken, the Committee observes the concerns raised by the ITUC and the HKCTU that there is still no legal framework to regulate the scope, protection and enforcement of the agreements and that less than one per cent of workers are covered by collective bargaining. The Committee recalls in this regard that collective bargaining is a fundamental right which members States have an obligation to respect, promote and to realize in good faith and that the overall aim of Article 4 of the Convention is to promote good-faith collective bargaining between workers or their organizations on the one hand, and employers or their organizations, on the other hand, with a view to reaching an agreement on terms and conditions of employment. The Committee also emphasizes that it has not been requesting the Government to impose compulsory collective bargaining, as under the terms of Article 4 of the Convention, collective bargaining must be free and voluntary but that it has been pointing to the need to strengthen the collective bargaining framework. The Committee also reiterates, as regards the tripartite committees established at the industry-level, that the principle of tripartism, which is particularly appropriate for the regulation of questions of a larger scope (drafting of legislation and formulating labour policies), should not replace the principle enshrined in the Convention of autonomy of workers’ organizations and employers (or their organizations) in bipartite collective bargaining on conditions of employment. The Committee also recalls that, whatever the type of machinery used, its first objective should be to encourage by all possible means free and voluntary collective bargaining between the parties, allowing them the greatest possible autonomy, while establishing a legal framework and administrative structure to which they may have recourse, on a voluntary basis and by mutual agreement, to facilitate the conclusion of a collective agreement under the best possible conditions (see the 2012 General Survey on the fundamental Conventions, paragraph 242). Considering the above, the Committee requests the Government, in consultation with the social partners, to step up its efforts to take effective measures, including of a legislative nature, to strengthen the legislative framework for collective bargaining so as to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations. The Committee requests the Government to provide statistics on the number of collective agreements concluded, the sectors to which they apply and the number of workers covered.

Article 6. Collective bargaining in the public sector. In its previous comments, the Committee requested the Government to ensure that public servants not engaged in the administration of the State, including teachers and employees in public enterprises, enjoy the right to collective bargaining. The Committee regrets to observe that the Government simply reiterates that every civil servant, irrespective of grade or rank, is a part of the civil service and contributes to the administration of the Government, and that all civil servants are thus excluded from the application of Article 6 of the Convention. It also observes the concerns expressed by the ITUC and the HKCTU that civil servants are excluded from the enforcement of the Convention without distinction of rank and job. While further noting the Government’s explanation that there are sufficient avenues for staff representatives to participate in the process for determining the terms and conditions of employment, including through an elaborate three-tier staff consultation mechanism and independent bodies which provide impartial advice on matters of conditions of employment, the Committee reiterates that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, public servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. It recalls that the establishment of simple consultation procedures for public servants instead of real collective bargaining procedures is not sufficient. The Committee therefore urges the Government to take the necessary measures, in consultation with the social partners, to ensure that public servants not engaged in the administration of the State, including teachers and employees in public enterprises, enjoy the right to collective bargaining. The Committee trusts that the Government will be able to report progress in this regard in the near future.

C144 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Articles 2(1) and 3(1) of the Convention. Effective tripartite consultations. Election of representatives of the social partners. The Committee has been requesting for some years that the Government and the social partners promote and strengthen tripartism and social dialogue in order to facilitate the operation of the procedures governing effective tripartite consultations, including ensuring the meaningful participation of the Hong Kong Confederation of Trade Unions (HKCTU) in the consultation process. In its previous comments, the Committee expressed its concern that there is a risk that the HKCTU may have been excluded from meaningful participation in the consultative process among the most representative organizations of workers in the Labour Advisory Board (LAB), as a result of the electoral system in place in the Special Administrative Region. In this context, the Committee recalls the previous observations of the HKCTU, which expressed concern in relation to the electoral system for representation on the LAB, the designated tripartite body for tripartite consultations for purposes of the Convention. In its observations, the HKCTU indicated that the composition of the LAB includes six workers’ representatives, five of whom are elected by registered trade unions, with a sixth representative appointed ad personam by the Government. It noted that, according to the current system, union votes are given equal weight regardless of size of membership, according to the principle of “one union, one vote”. Moreover, the electoral system allows voters to vote for a slate of five candidates, as a block, in one ballot. As a result, if the slate of five candidates receives more than half of the votes, the slate would win all five seats. In its observations, the HKCTU maintained that this electoral system was unjust and had effectively prevented it from being elected to the LAB, despite its status as the second largest trade union confederation. The Committee notes the Government’s indication that its position in respect of the application of the Convention remains unchanged. The Committee notes that, in its report, the Government once again reiterates its commitment to ensuring effective tripartite consultations through the LAB, as well as reiterating information previously provided concerning its electoral system. The Government reiterates that, in the Hong Kong Special Administrative Region (HKSAR), every workers’ union is free either to affiliate to one or more trade union groups or to remain unaffiliated. The Government notes that more than half of the registered workers’ unions are not affiliated to any major trade union group and that, since all workers’ unions may exercise their free choice in the election, no trade union group can dictate the election results. It adds that all registered workers’ unions are entitled to exercise their free choice in the election and that there is no question of any particular workers’ union being excluded from the election. The Government reiterates its commitment to continuing to ensure that every registered trade union, including those affiliated to the HKCTU, enjoys the same right as other registered trade unions to nominate candidates and to vote in the election of workers’ representatives of the LAB. Nevertheless, the Government reiterates that it would be improper and inappropriate if the system of electing workers’ representatives to the LAB were to be changed for the advantage of a particular organization. In this context, the Committee notes that the latest election of workers’ representatives in the LAB was held in November 2018. The Government indicates that 12 nominations were received, which included four incumbent workers’ representatives and that, after the trade unions cast their votes by secret ballot, three incumbent workers’ representatives and two other candidates were elected. The HKCTU was not elected to the LAB. The Committee recalls that the term “most representative organizations of employers and workers”, as provided for in Article 1 of the Convention, “does not mean only the largest organization of employers and the largest organization of workers”. In its 2000 General Survey on tripartite consultation, paragraph 34, the Committee refers to Advisory Opinion No. 1 of the Permanent Court of International Justice, dated 31 July 1922, in which the Court established that the use of the plural of the term “organizations” in Article 389 of the Treaty of Versailles referred to both organizations of employers and those of workers. Based on this opinion, the General Survey clarified that the term “most representative organizations of employers and workers” does not mean only the largest such organization. If in a particular country there are two or more organizations of employers or workers which represent a significant body of opinion, even though one of them may be larger than the others, they may all be considered to be “most representative organizations” for the purpose of the Convention. In such cases, governments should endeavour to secure an agreement of all the organizations concerned in establishing the tripartite procedures (2000 General Survey on tripartite consultation, paragraph 34). The Committee therefore once again urges the Government to make every effort, together with the social partners, to ensure that tripartism and social dialogue are promoted and strengthened so as to facilitate the operation of procedures that ensure effective tripartite consultations that include the most representative organizations of employers and workers, as required under Articles 1 and 2 of the Convention, including by encouraging the Labour Advisory Board to amend its current electoral system. The Committee also once again requests the Government to report on progress made in ensuring the HKCTU’s meaningful participation in the consultative process among the most representative organizations of workers.

Article 5(1). Effective tripartite consultations. The Government indicates that, during the reporting period, the LAB’s Committee on the Implementation of International Labour Standards (CIILS) was consulted on all reports to be submitted under article 22 of the ILO Constitution. The procedures for preparing these reports and copies of the reports were communicated to all members of the LAB. In 2018, members of the CIILS met with officials from the Transport and Housing Bureau and the Marine Department of the HKSAR Government and were informed of progress with regard to the application of the Maritime Labour Convention, 2006 (MLC, 2006), in the HKSAR. The Committee notes the report of the LAB for 2017–18, communicated together with the Government’s report. The Committee requests the Government to continue to provide detailed and up-to-date information on the content and outcome of the consultations held on all of the matters relative to international labour standards as required under Article 5(1)(a)–(e) of the Convention.

In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages the Government to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, in accordance with the guidance provided in Article 4 of the Convention as well as Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.

MLC, 2006 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that the eight Conventions on maritime labour, which were applicable to Hong Kong Special Administrative Region (HKSAR) have been denounced following the entry into force for the HKSAR of the MLC, 2006. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 entered in force for the HKSAR on 18 January 2017. It also notes that a declaration of acceptance of the 2016 amendments to the Code has not been received and therefore HKSAR is not bound by these amendments. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020, respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.

Article I of the Convention. General questions on application. Implementing Measures. 1. Exceptions. The Committee notes that under section 114(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, subject to sections 29 and 30, the Authority may exempt a Hong Kong ship or a class or description of Hong Kong ships from complying with any Part 2 requirement - i.e. all requirements concerning working and living conditions - subject to the conditions the Authority thinks fit. The Committee observes that the Convention does not allow for exemptions except in the few cases and under the conditions explicitly provided by it (e.g. Article II(6) and Title 3). The Committee requests the Government to amend section 114 of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation in order to ensure full compliance with the MLC, 2006.

2. Collective agreements. The Committee notes that the example of collective agreement provided by the Government as Annex 8 is no longer in force (expired in 2018). The Committee requests the Government to indicate the collective agreements which are currently in force for seafarers covered by the Convention and supply a copy thereof.

Article II(1)(i)(f) and 4. Definitions and scope of application. Seafarers. The Committee notes the Government's information that the MLC, 2006 is not applicable to ships, which operate voyages between Hong Kong and Macau. The Committee recalls that the Convention applies to all ships flying the flag of the ratifying Member ordinarily engaged in commercial activities, regardless of the types of voyages in which they are engaged. The Committee requests the Government to indicate the measures taken to ensure that the Convention is also implemented with respect to ships operating between Hong Kong and Macau.

Regulation 1.1 and Standard A1.1, paragraphs 2 and 3. Minimum age. Night work. The Committee notes that under section 6(2) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, a young seafarer, i.e. a person under 18 years, must not carry out works during the night period unless the training for the seafarer in accordance with an approved training programme would be impaired, or the specific nature of the duty of the seafarer or of an approved training programme requires the seafarer to work during the night period forming part of training under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW). The Committee observes that such section is only partially compliant with Standard A1.1, paragraph 3(b) of the Convention, which also requires that “the authority determines, after consultation with the shipowners’ and seafarers’ organizations concerned, that the work will not be detrimental to their health or well-being”. The Committee requests the Government to indicate how it ensures full conformity with this provision of the Convention.

Regulation 2.1 and Standard A2.1(1)(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that under section 80(1) of the Merchant Shipping (Seafarers) Ordinance, a written employment agreement must be entered into between a person who works as a seafarer on a Hong Kong ship and the owner of the ship or a person, including the manager or charterer of the ship, who has assumed responsibility for the operation of the ship from the owner. It also notes that under section 12(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, seafarers must have entered into employment agreements with their “employers”, that Schedule 1 of the same Regulation on requirements for the employment agreement refers to employers, and that the model seafarers' employment agreement (SEA) supplied by the Government is stipulated between the seafarer and her/his employer. The Committee notes, in this connection, that section 12(1) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation and the model SEA are not clear as to who is the responsible party for seafarers’ living and working conditions. The Committee underlines the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. In accordance with Standard A2.1, paragraph 1, every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered the employer of the seafarer). The Committee requests the Government to clarify who are the parties to the SEA. It further requests the Government to harmonize its legislation in accordance with Standard A2.1, paragraph 1(a) and to amend the model SEA accordingly to ensure that the SEA is signed by the shipowner or her/his representative.

The Committee notes that under section 80(5) of the Merchant Shipping (Seafarers) Ordinance “the Secretary for Transport and Housing may make regulations providing for exemptions from the requirements of this section, and the Authority may grant other exemptions from those requirements (whether with respect to particular seafarers or with respect to seafarers employed by a specified person or in a specified ship or in the ships of a specified person) in cases where the Authority is satisfied that the seafarers to be employed otherwise than under a crew agreement will be adequately protected.” The Committee requests the Government to clarify the scope of section 80(5) and related possible exemptions and indicate how it ensures full compliance, in all cases, with Regulation 2.1(1) and Standard A2.1(1)(a).

Regulation 2.1 and Standard A2.1(1)(d). Seafarers’ employment agreements. Information on conditions on board. The Committee notes that section 7(2) of the Merchant Shipping (Seafarers) (Crew Agreements, Lists of Crew and Discharge of Seafarers) Regulation provides for the possibility for the Superintendent to grant exemptions from the requirement of posting copies of the crew agreement on board ships. In relation to this exemption, the Committee requests the Government to indicate how it gives effect, in all cases, to the requirement of Standard A2.1(1)(d) that clear information as to the conditions of employment can be easily obtained on board by seafarers and that such information, including a copy of the SEA, is also accessible for review by competent authorities.

Regulation 2.2 and Standard A2.2(5). Wages. Allotments. The Committee notes that section 57(2)(b)(i) of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation, which regulates allotment of seafarers' wages, provides that the rate of exchange for the allotment could be “the rate agreed between the employer and the seafarer”. The Committee observes that such provision is not fully compliant with the Convention, in as far as Standard A2.2, paragraph 5 provides that the rate of currency exchange for transmitting earnings to the seafarers' families “unless otherwise provided, shall, in accordance with national laws or regulations, be at the prevailing market rate or the official published rate and not unfavourable to the seafarer.” The Committee requests the Government to indicate the measures taken to ensure full conformity with Standard A2.2, paragraph 5.

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. Scope of application. The Committee notes the Government's information that hours of work and rest are regulated under the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation and the Merchant Shipping (Seafarers) (Hours of Rest) Regulation. It observes that while the first Regulation covers all ships registered in Hong Kong, the latter only applies to coastal going ships. It also notes that the Merchant Shipping (Seafarers) (Hours of Rest) Regulation gives only partial effect to Standard A2.3 and allows for exceptions (section 3(2)), which are not allowed by the Convention. The Committee recalls that Regulation 2.3 applies to all ships covered by the Convention, with no possible exemptions allowed whatsoever. The Committee requests the Government to take the necessary measures to ensure that Regulation 2.3 is implemented with respect to all ships covered by the Convention, with no exemptions. In this regard, it also requests the Government to clarify the relationship between the two Regulations mentioned above with regard to their scope of application.

Regulation 2.5 and Standard A2.5.1(2)(b). Repatriation. Maximum period of service on board. The Committee notes that under section 3A of the Merchant Shipping (Seafarers) (Repatriation) Regulation, the seafarer may be repatriated when she/he “… has served on board the ship consecutively for: (i) 11 months; or (ii) any longer period agreed to by the seafarer in writing; …”. The Committee recalls that under Standard A2.5, paragraph 2(b), the maximum duration of service periods on board following which a seafarer is entitled to repatriation shall be less than 12 months. It considers that, from the combined reading of Standard A2.4, paragraphs 2 and 3, on annual leave and Standard A2.5.1, paragraph 2(b), the maximum continuous period of shipboard service without leave is in principle 11 months. The Committee further recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. Indeed, Standard A2.4, paragraph 3 does not lay down an absolute prohibition as exceptions may be authorized by the competent authority. While the Convention is silent about the nature and scope of permissible exceptions, the Committee considers that this provision needs to be read restrictively in order not to defeat the purpose of Regulation 2.4. The Committee considers that the possibility to forgo annual leave and stay on board for “(ii) any longer period agreed to by the seafarer in writing”, as provided by section 3A of the Merchant Shipping (Seafarers) (Repatriation) Regulation is clearly not in conformity with the Convention. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to indicate the measures taken to ensure conformity with Standard A2.5.1, paragraph 2(b) and Standard A2.4, paragraphs 2 and 3 of the Convention.

Regulation 2.5 Standard A2.5.1(1) and 2(a). Repatriation. Circumstances. The Committee notes that under section 3B of the Merchant Shipping (Seafarers) (Repatriation) Regulation, a seafarer’s entitlement to repatriation ceases if – inter alia – “the seafarer informs the employer in writing that the seafarer does not wish to be repatriated”. The Committee recalls that the Convention does not provide that the right to repatriation ends in the above circumstance. It requests the Government to indicate how it ensures that any provision in the national legislation depriving seafarers from the right to repatriation is strictly limited to the circumstances allowed under the Convention.

Regulation 2.5, Standard A2.5.1 and Guideline B2.5.1(6)(7). The Committee notes that the Merchant Shipping (Seafarers) (Repatriation) Regulation gives effect to Regulation 2.5 and the Code. It also notes that clause 18 of the “standard clauses for a Honk Kong registered / foreign sea-going ship” (hereinafter, Standard Clauses for SEA) refers to repatriation to the place at which the seafarer was employed, while article 16 of the collective bargaining agreement supplied by the Government refers to the place of repatriation as either the place of original engagement or home. The Committee recalls that Guideline B2.5.1, paragraph 6 provides that Members should prescribe the destinations to which seafarers may be repatriated. The destinations should include the countries with which seafarers may be deemed to have a substantial connection including: (a) the place at which the seafarer agreed to enter into the engagement; (b) the place stipulated by collective agreement; (c) the seafarer’s country of residence; or (d) such other place as may be mutually agreed at the time of engagement. Seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated (Guideline B2.5.1, paragraph 7). The Committee requests the Government to indicate how it has given due consideration to Guideline B2.5.1, paragraphs 6 and 7.

Regulation 4.2 and Standard A4.2.1(5). Shipowners’ liability. Possible Exclusion. While noting the Government's information that under clause 24.8 of the Standard Clauses for SEA the shipowner is excluded from liability in the cases provided for by Standard A4.2.1, paragraph 5, the Committee observes that such Standard provides that exclusions may only be regulated through “national laws or regulations”. The Committee requests the Government to indicate the relevant national provisions giving effect to Standard A4.2.1, paragraph 5 of the Convention.

Regulation 4.2 and Standard A4.2.2(3). Shipowners’ liability. Financial security. Procedures for contractual claims related to compensation. The Committee notes the Government's information that sections 61 and 62 of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation give effect to Standards A4.2.1 and A4.2.2. It also notes that under section 62(2) of the Regulations , the financial security: (a) must be in the form of an insurance policy; and (b) must comply with the requirements set out in paragraphs 8(a), (b), (c), (d) and (e) and 13 of Standard A4.2.1 of the Convention. The Committee notes that no national provisions appear to provide for the procedures to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard. It requests the Government to indicate the legislative measures taken to establish such procedures in line with Standard A4.2.2, paragraph 3.

Regulation 4.3 and Standard A4.3. Health and safety protection and accident prevention. Scope of application. The Committee takes note of the legislation cited by the Government, in particular the Merchant Shipping (Seafarers) (Health and Safety: General Duties) Regulation and the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation, which give effect to most of the requirements of Regulation 4.3 and Standard A4.3. It further notes that both Regulations, as well as the Merchant Shipping (Seafarers) (Code of Safe Working Practices) Regulation, contain provisions allowing the authority to grant exemptions from all or any of the provisions of the regulations or parts thereof “for classes of cases or individual cases on such conditions, if any, as the Authority thinks fit”. The Committee further notes that some provisions of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation (Part II on safety officials and section 12A on reporting of notifiable diseases) exclude from their scope of application high speed crafts that navigate exclusively between Hong Kong and any other port in China. The Committee recalls Regulation 4.3 covers all ships under the scope of the Convention (Article II, paragraph 4) and does not allow for any exclusions nor exemptions. The Committee requests the Government to indicate the measures taken to ensure that Regulation 4.3 and the Code are implemented with regard to all ships covered by the Convention without exceptions.

Regulation 4.3(2). Health and safety protection and accident prevention. National guidelines. The Committee requests the Government to provide information on the development, after consultation with representative shipowners' and seafarers' organizations, of national guidelines for the management of occupational safety and health on board ships flying its flag.

Regulation 4.3, Standard A4.3(5) and (6) and Guideline A4.3.5(1). Health and safety protection and accident prevention. Reporting of occupational accidents, injuries and diseases. Protection of personal data. The Committee notes that sections 10-12A of the Merchant Shipping (Seafarers) (Safety Officials and Reporting of Accidents, Dangerous Occurrences and Occupational Diseases) Regulation give application to most of the requirements of Standard A4.3, paragraph 5. Noting that section 12A of the Regulation provides that in reporting notifiable diseases the seafarer's data should be included, the Committee requests the Government to indicate how it is ensured that the reporting and investigation and publication of statistics on occupational accidents and occupational injuries and diseases take into account the protection of the personal data of the seafarers concerned (Standard A4.3(6) and Guideline B4.3.5(1)).

Regulation 4.5, Standard A4.5(2), (10) and (11) and Guideline B4.5(1). Social security. Recommended branches. The Committee notes that at the time of ratification, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following branches of social security: medical care, old-age benefit and invalidity benefit. The Committee recalls that, in order to complement the protection afforded under Regulations 4.1 and 4.2, Guideline B4.5, paragraph 1 provides that the protection to be provided at the time of ratification should at least include the branches of medical care, sickness benefit and employment injury benefit. Noting that two of these branches have not been specified by the Government, the Committee requests it to indicate how it has given due consideration to Guideline B4.5, paragraph 1. The Committee takes note of the Government’s statement that the Marine Department will regularly review the situation for improving the benefits currently provided to seafarers. The Committee requests the Government to provide information on the progress made to extend protection to other branches (Regulation 4.5, paragraph 2 and Standard A4.5, paragraph 11).

Regulation 4.5 and Standard A4.5(3). Social security. Protection for seafarers ordinarily resident in its territory. The Committee notes that the Government provides limited information on the application of Regulation 4.5 and the Code. It notes the Government’s information for the branches specified that “in general, where eligible, Hong Kong registered seafarers when discharged on shore will have the same benefit as other HKSAR residents”. The Committee recalls that Standard A4.5, paragraph 3 of the Convention requires that each Member shall take steps according to its national circumstances to provide social security protection to all seafarers ordinarily resident in their territory, which shall be no less favourable than that enjoyed by resident shoreworkers. The Committee requests the Government to indicate how this requirement is implemented with respect to all seafarers ordinarily resident in its territory, regardless of their nationality and the flag of the ships on which they work. In this regard, it requests the Government to provide detailed information on the benefits granted to resident seafarers under the branches specified, including reference to the provisions of the applicable legislation.

Regulation 4.5, Standard A4.5(5) and Guideline B4.5(6) and (7). Social security. Monitoring of payment of contributions. The Committee requests the Government to provide information on how shipowners’ and, if applicable, seafarers’ contributions to relevant social protection and social security schemes are monitored to verify that the contributions are made (Standard A4.5, paragraph 5 and Guideline B4.5, paragraphs 6 and 7).

Regulation 4.5 and Standard A4.5(9). Social security. Procedures to settle disputes. The Committee notes the Government’s information that the Marine Department will facilitate the settlement of disputes when necessary. It requests the Government to provide more details on the procedures established to settle disputes on social security (Standard A4.5, paragraph 9).

Regulation 5.1.2(2) and Standard A5.1.2(1). Flag State responsibilities. Recognized organizations. The Committee notes the Government's information on the coordination between the Marine Department and the recognized organizations (ROs) authorized to carry out certification and inspections for Hong Kong registered ships related to the Convention. The Committee requests the Government to provide detailed information on how it reviews the criteria for competency and independence of recognized organizations (Standard A5.1.2, paragraph 1 and Guideline B5.1.2, paragraphs 1 and 2).

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee notes that while the Declaration of Maritime Labour Compliance (DMLC) Part I supplied by the Government contains extensive information on the content of national requirements, it is not easy to identify the respective national provisions for each requirement. The Committee recalls that Standard A5.1.3, paragraph 10(a), provides that the DMLC, Part I, shall identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions. It also recalls that the purpose of the DMLC, Part I, is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 16 listed matters are being properly implemented on board ship. The Committee requests the Government to indicate any steps taken to revise the DMLC, Part I, to ensure that it clearly identifies the relevant national provisions.

Regulation 5.1.6(1). Marine casualties. The Committee notes that section 122 of the Merchant Shipping (Seafarers) Ordinance provides for the obligation for the Superintendent to hold inquiries into deaths of persons on board Hong Kong ships. It further notes the Government's information that the Mercantile Marine Office of the Marine Department conducts inquiries into all death of person cases including accident and natural death. The Marine Accident Investigation Section of the Marine Department conducts safety investigation into all serious marine accidents including injury cases. The Committee requests the Government to indicate the provisions establishing that competent authorities shall hold a compulsory official inquiry into serious marine casualties leading to injuries, and to indicate the relevant legislative provisions.

Regulation 5.2.2(1) and Standard A5.2.2 (1)–(7). The Committee's notes that the Government refers to complaints in the framework of flag State control. It also notes that, while sections 103 et seq. of the Merchant Shipping (Seafarers) (Working and Living Conditions) Regulation regulate Port State Control inspections, including following to complaints, the same legislation does not regulate procedures for seafarers calling at its ports to report a complaint alleging breach of the requirements of the MLC, 2006. The Committee recalls that Regulation 5.2.2, paragraph 1 provides for the right of seafarers on ships calling at a port in the Member's territory to bring complaints alleging a breach of the Convention requirements, which shall be investigated by competent port state control authorities as detailed in Standard A5.2.2. The Committee requests the Government to indicate the measures taken to implement Regulation 5.2.2 and the Code.

[The Government is asked to reply in full to the present comments in 2023.]

Adopted by the CEACR in 2019

C097 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Statistical data on migration. Following its previous comment, the Committee takes note of the statistical information annexed to the report of the Government, showing that during the period covered by the report, 103,044 foreign professionals, 10,908 foreign workers under the Supplementary Labour Scheme (SLS), and 361,004 Foreign Domestic Helpers (FDHs) (355,461 of whom are women) were admitted into the territory. The Committee also notes that additional data regarding FDHs are published periodically by the Immigration Department (ImmD) and the Women’s Commission of Hong Kong. The Committee welcomes the fact that the data available is disaggregated by sex and nationalities, evidencing that FDHs are predominantly women from the Philippines and Indonesia.

Article 1. National policies on migration. In follow-up to its previous request for information on any developments related to national policies on migration, the Committee takes note of the adoption in 2018 of an Action Plan to Tackle Trafficking in Persons and to enhance the Protection of Domestic Helpers in Hong Kong. Furthermore, the Committee notes that the Government is receiving technical assistance on the promotion of fair recruitment practices of migrant workers from the Office in the context of phase II of the Integrated Programme on Fair Recruitment (FAIR) of the ILO. The Committee requests the Government to provide information on the measures taken to implement the Action Plan to Tackle Trafficking in Persons and to enhance the Protection of Domestic Helpers and on the results of the technical assistance provided by the Office through its FAIR programme.

Article 2. Free services to assist migrant workers. In its previous comment, the Committee had requested the Government to provide information on its efforts to ensure that migrant workers benefit effectively from free services, including translation services. The Committee notes that in its report, the Government refers to a number of initiatives in this regard, including: (1) the establishment of free interpretation and translation services provided by the Labour Department; (2) the establishment by the Labour Department of hotlines available 24 hours a day and 7 days a week to respond to migrant workers’ inquiries about their rights; (3) the translation of the Standard Employment Contract, in collaboration with the Consulates Generals of the countries of origin; and (4) the production of information materials in foreign languages and their dissemination through various medias. The Government further indicates that migrant workers have access to free medical treatment, and are provided with free return passages to their countries of origin. The Committee takes note of all the information.

Article 3. Misleading propaganda. Regulation of employment agencies. Following its previous comment in this regard, the Committee takes note of the measures referenced in the report of the Government, aiming at ensuring that migrant workers are not victims of misleading propaganda, in particular from employment agencies (EAs). Among these measures, the Committee takes note of the Government’s efforts for the diffusion of accurate information, such as: (1) the launch of two websites by the Department of Labour (the FDH Portal, and the EAs Portal); (2) the production and diffusion of guides, leaflets, and other information materials in several languages; (3) the organization of workshops by the Equal Opportunity Commission (EOC) to promote a better knowledge of the substance of the anti-discrimination legislation among foreign workers (including FDHs); (4) the installation of information kiosks in places where FDHs gather on their weekly leave day; and (5) the collaboration with the authorities of countries of origin to diffuse accurate information prior to departure. The Committee also takes note of the Government’s indications on the regulation of EAs, that include information on the EAs’ licensing system, the inspections (regular and unannounced) of EAs conducted, the investigation of complaints against EAs, the prosecution of offences, the revocation of licences following convictions, as well as the promulgation in 2017 of a code of practice for EAs. Lastly, the Committee notes the adoption of the following additional measures concerning EAs: the publication in 2018 of a Practical Guide for operating EAs by the Department of Labour, and the entry into force on the same year of amendments to the Employment Ordinance (Cap. 57) and the Employment Agencies Regulations (Cap. 57 sub. Leg. A) that increased the maximum penalty for the operation of an employment agency without a licence and the overcharging of commissions to workers. While the Committee welcomes these developments, it notes the indication in the report of the Government that EAs are not authorized to receive a commission representing more than ten per cent of the worker’s first month’s salary (as provided under Part II of the Second Schedule of the Employment Agencies Regulations (Cap. 57 sub. Leg. A)). The Committee invites the Government to adopt measures to ensure that recruitment fees or related costs are not collected from workers.

Article 6(1)(a). Equality of treatment. Domestic workers. Remuneration and other working conditions and accommodation. For some years, the Committee had noted the concerns expressed by several workers’ organizations with regard to the situation of domestic workers and had requested the Government to provide information on the measures taken to ensure that FDHs are not treated less favourably as compared to nationals in respect to the matters enumerated in Article 6(1)(a)(i) and (iii) (remuneration and other working conditions, and accommodation).

Remuneration. In follow-up to its previous comments in this regard, the Committee notes that the Government reiterates that the Minimum Wage Ordinance (MWO) does not apply to live-in domestic workers but applies to other foreign workers. The Government further indicates that FDHs are covered by the Minimum Allowable Wage (MAW), which level is regularly reviewed by the Government, taking into account the general economic and employment situation as reflected in the relevant indicators, and the need to strike a balance between the affordability for employers and the livelihood of FDHs. The Government also indicates that the relevant employers’ and workers’ organizations are consulted for the fixing of the MAW. While taking note of this information, the Committee observes that for 2019, the MAW and the food allowance applicable to FDHs are respectively 4,520 Hong Kong dollars (HKD) and 1,075HKD per month, and that the minimum hourly wage rate prescribed under the MWO is 37.5HKD (that is approximately 8,100HKD per month for 48 hours of work per week). Thus, the Committee notes that the MAW amounts to approximately 70 per cent of the minimum wage. Noting that the allowances in kind received by FDHs may explain this differential, the Committee requests the Government to provide further details on the value attributed to these allowances (in particular to FDHs’ accommodations) when fixing the MAW.

Enforcement. Working conditions. On the application of Article 6(1)(a)(i) in practice, the Committee notes the Government’s indications that: (1) the Employment Ordinance and the anti-discrimination legislation apply to FDHs who may file complaints with the Labour Department (including through the hotline available at all times) and the EOC; (2) for all employment claims filed by FDHs, the Labour Department renders free conciliation services to resolve the dispute as soon as possible; (3) when settlements cannot be reached, the Labour Department refers the cases to the Labour Tribunal or the Minor Claims Adjudication Board for their adjudication; (4) the Labour Department investigates promptly any suspected offences under the Employment Ordinance or the Employee’s Compensation Ordinance; and (5) FDHs’ claims concerning serious assaults, including sexual assaults are referred to the police for their investigation and are being prosecuted. The Government also provides information on the number of cases settled or adjudicated, as well as on the number of summons issued for offences to the labour legislation. While taking note of this information, the Committee notes that on the sanctions imposed to FDHs’ employers in breach of their obligations, the Government refers to one employer being sentenced to four months of imprisonment and to another one being sentenced to hours of community services. The Committee requests the Government to provide more detailed information on the sentences actually imposed to the employers of FDHs found in breach of the legislation on working conditions (fines, imprisonment, or other types of sentences) and to clarify whether these sanctions are dissuasive in practice.

Furthermore, the Committee notes that the United Nations Committee on the Elimination of Racial Discrimination expressed concern over the fact that the live-in requirement renders domestic workers vulnerable to abuse, and that the rule requiring the workers to leave the territory within two weeks upon termination of contract hinders their ability to obtain redress for labour violations (CERD/C/CHN/CO/14–17, 20 August 2018, paragraph 30). In this regard, the Committee takes note of the indications in the report of the Government that: (1) FDHs may apply for extensions of stay to pursue civil or criminal proceedings; (2) arrangements are possible to enable FDHs who have returned to their home countries to testify in these proceedings; and (3) FDHs may also file applications to change employers. The Government further indicates that during the period covered by the report, all the applications filed for extensions of stay, and almost all the applications to change employers were approved. While taking note of this information, the Committee requests the Government to continue to provide detailed information on its efforts to ensure that FDHs have access to effective remedies to obtain redress for the violation of the legislation on working conditions. In particular, the Committee requests the Government to provide information on: (1) the number of complaints received from FDHs, the nature of these complaints, and the follow-up given to them; (2) the number of cases investigated by the authorities without complaints and their outcome; (3) the approval rates of the applications to extend stays or change employers; and (4) the arrangements made to enable workers who have left the country to testify in the context of civil or criminal proceedings.

Enforcement. Accommodation. With regard to the measures in place to combat the provision of substandard accommodations to FDHs, the Committee takes note of the Government’s indications that: (1) the Standards Employment Contract includes a schedule on the accommodation that is to be provided; (2) employers are required to provide detailed information on the FDH’s future accommodation to ImmD when the visa application is filed; (3) ImmD may inspect the accommodation, prior to the FDH’s entry and after his or her arrival; and (4) the Labour Department may also conduct unannounced visits to verify the accommodations provided to workers. Noting that the Government also indicates that ImmD and the Department of Labour do not keep statistics on the number of cases submitted by FDHs regarding substandard accommodations, the Committee wishes to highlight that appropriate data and statistics are crucial in determining inequalities of treatment faced by migrant workers, to set priorities and design measures, and to evaluate their impact and make adaptations where necessary (2016 General Survey, Promoting Fair Migration, paragraph 648). The Committee requests the Government to provide detailed information on the number of inspections of FDHs’ accommodations actually conducted, the number of complaints received on substandard accommodations, and the follow-up given to these inspections and complaints.