Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

normal'>(notification: 1997)

Article 6 of the Convention. Equality of treatment between migrant workers, particularly domestic workers, and nationals. The Committee recalls its previous observation in which it continued its dialogue with the Government on the recommendations made by the Governing Body at its 288th Session (November 2003) concerning a representation made by the Trade Union Congress of the Philippines (TUCP), under article 24 of the ILO Constitution, alleging non-observance by China of Convention No. 97 with respect to the Hong Kong Special Administrative Region. In this observation, the Committee urged the Government as follows: (1) to review its proposal to apply a seven-year residence requirement for eligibility for public health care, and its impact on the principle of equal treatment; (2) to provide information on the complaints received from “imported” workers and foreign domestic helpers by the Labour Department with regard to non-compliance with the social security provisions of the standard employment contract; (3) to assess the impact of the wage and levy policies on the equal treatment between nationals and imported and foreign domestic helpers; (4) to provide information comparing the number of underpayment claims received before and after the entering into force of the wage and levy policies in 2003, and on the claims that have resulted in compensation for underpaid wages of the foreign domestic workers concerned; and (5) to provide information on the measures taken to prevent and punish abuse of migrant workers, especially foreign domestic workers, and the impact of these measures on their conditions of work.

Equality of treatment with respect to social security

Access to public health care. The Committee notes the Government’s statement that “imported” workers, foreign domestic helpers and professionals are entitled to receive medical treatment in public hospitals and clinics, and that immigrant workers are charged the same subsidized rate as that for local residents. In 2006–07 an estimated 25,000 “imported” workers and foreign domestic helpers made use of the public medical services. The Committee notes with satisfaction that the Government has abandoned the plan to implement the proposed seven-year residence requirement for eligibility for public healthcare benefits in the foreseeable future. The Committee asks the Government to continue to report on the access of “imported” workers and foreign domestic helpers to public healthcare. With respect to complaints received on social security provisions in standard employment contracts, the Committee refers to its 2008 direct request on this Convention.

Equality of treatment with respect to remuneration

The Committee notes that the Minimum Allowable Wage (MAW), which had been reduced from 3,670 Hong Kong Dollars (HKD) to HKD3,270 in 2003, has been subsequently increased to the current level of HKD3,580 (July 2008), and that the Employees Retraining Levy (ERL) has remained at HKD400. The Committee further notes that on 19 July 2006, the High Court of the Hong Kong Special Administrative Region, China, ruled in favour of the Government in an appeal lodged by a group of foreign domestic helpers against the Chief Executive Council, the Director of Migration and the Employees Retraining Board (Civil Appeal No. 218 of 2005) challenging the imposition of the ERL on foreign domestic helpers and the reduction of the minimum wage in 2003 by the same amount. However, the Committee also notes from information published by the Immigration Department of the Hong Kong Special Administrative Region, China, that in August 2008, the Government decided to suspend the obligation for employers of all “imported labour”, including foreign domestic helpers, to pay the ERL for employment of foreign domestic helpers from 1 August 2008 to 31 July 2010. The suspension was further extended to 31 July 2013, by the Employees Retraining Ordinance (Amendment of Schedule 3) (No. 2) Notice 2008 (Amendment Notice No. 2), which was tabled at the Legislative Council for vetting on 12 November 2008. The Committee notes that the levy suspension will apply to new employment contracts and the renewal of existing contracts of “imported workers” and foreign domestic helpers for whom visas are issued by the Immigration Department between 1 August 2008 and 31 July 2013, irrespective of the date on which the contracts are signed.

The Committee further notes that the Government has acknowledged that some employers with pre-existing contracts for foreign domestic helpers may terminate their contracts prematurely in order not to pay the levy as soon as the suspension takes effect. It has therefore introduced a new special arrangement as of 1 August 2008, whereby applications for advanced contract renewal involving the same employer and the same employee are accepted during the suspension period, without requiring the foreign domestic helper to leave the Hong Kong Special Administrative Region, China, after the existing contracts have been terminated. For existing contracts which are still in force with an outstanding levy, the employers have to settle the payment in the usual manner. If the contract is subsequently terminated prematurely with an unused levy balance, the balance shall not be reimbursed or carried forward until after the suspension period. Finally, the Committee notes that as of 31 July 2008, there were about 252,200 foreign domestic helpers, mostly women, and 1,330 “imported workers” such as care workers and farm workers in the Hong Kong Special Administrative Region, China, under the Supplementary Labour Scheme. Their employers will benefit from the levy suspension when they renew the contracts of their worker at any time during the five-year suspension period.

The Committee welcomes the measures to suspend the ERL for five years and the measures to reduce the risk of employers prematurely terminating pre-existing contracts, along with the subsequent increases in the MAW of foreign domestic workers, which constitute important progress in the application of Article 6 of the Convention. Nevertheless, the Committee also notes that certain issues are still pending. Firstly, the Government’s policy that the overall expenses of the Employees Retraining Board should be primarily met by a levy and that employers of low-skilled “imported” labour should contribute towards the training and retraining of local workers, remains unchanged. Furthermore, it needs to be assessed whether foreign domestic workers whose visas have been issued before 1 August 2008 are at an increased risk of losing their employment prematurely because their employer wants to change his or her domestic worker in order to take advantage of the levy suspension; something which might not have happened if the levy suspension were applicable to all foreign domestic workers. In order to be able to assess that real progress is being made in the application of the principle of equal treatment enshrined in Article 6 of the Convention and that the principles of equity and proportionality are being applied to all foreign domestic workers, the Committee asks the Government to provide information on the following:

(i)    the reasons for applying the levy suspension only to new employment contracts and renewal of existing contracts;

(ii)   to examine, with a view to extending the levy suspension to all foreign domestic helpers, whether the levy suspension has significantly increased the premature termination of pre-existing employment contracts of foreign domestic workers without renewal, after 1 August 2008; and

(iii) any further developments with respect to the suspension of the obligation for employers of foreign domestic helpers and “imported” workers to pay the ERL.

Underpayment claims. With regard to the issue of underpayment of wages of foreign domestic helpers as a result of the wage and levy policies previously raised by the Indonesian Migrant Workers Union (IMWU) and the Asian Domestic Workers Union (ADWU), the Committee notes that there has been an increase in claims on alleged underpayment of wages handled by the Labour Department, involving 800 claims from 1 June 2004 to 31 March 2007. Of the 800 cases, 330 were settled with the assistance of the Labour Department and the remaining 470 were subsequently referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board. According to the Government, the growing number of claims can be attributed to the increased awareness of foreign domestic helpers of their statutory and contractual rights as well as the avenues for submitting complaints. Apart from assisting “imported” workers or foreign domestic helpers to pursue their employment claims, the Department of Labour has also summoned 93 employers because of underpayment of wages or breaches of the Employment Ordinance Order, 92 of which resulted in a conviction and a fine. The Committee further notes that to enhance the deterrent effect against employers defaulting on wage payments, the maximum penalty for wage offences has been substantially increased from a fine of HKD200,000 and imprisonment for one year to a fine of HKD350,000 and imprisonment for three years since March 2006. The Committee asks the Government to continue to provide information on the claims submitted by foreign domestic workers for the underpayment of wages, including information on the number of any of the new claims, as well as those submitted since June 2004 that have actually resulted in compensation of the foreign domestic workers concerned.

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

[The Government is asked to reply in detail to the present comments in 2010.]