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

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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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.