Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the Government’s report in reply to the request made by the Conference Committee on the Application of Standards in June 2012. It also notes the joint communication, dated 31 August 2012, of the Hong Kong Confederation of Trade Unions (HKCTU) and the Hong Kong Federation of Asian Domestic Workers Union (FADWU) which was sent to the Government for its comments.

Article 1 of the Convention. Information on national policies, laws and regulations. Permanent residency. The Committee recalls its previous observation in which it had noted that the immigration rules (section 2(4)(a)(vi) of the Immigration Ordinance) prevent foreign domestic workers from being eligible to seek permanent residence. The Committee notes that on 28 March 2012, the High Court of Appeal overturned the decision of the High Court of First Instance which found that section 2(4)(a)(vi) of the Immigration Ordinance (Chapter 115) was inconsistent with section 24(2)(4) of the Basic Law of Hong Kong SAR of the People’s Republic of China. The Committee notes that appeal against the High Court of Appeal’s ruling is pending before the Court of Final Appeal. The Committee notes from the information submitted to the High Court of First Instance that as of 31 December 2010, there were 117,000 domestic workers who had been continuously working in Hong Kong for more than seven years. Considering the important number of foreign domestic workers residing in HKSAR for longer than seven years, and considering the impact that the decision the High Court of Final Appeal could have on the domestic worker population in HKSAR, the Committee asks the Government to provide information on the outcome of the case pending before the Court of Final Appeal. The Committee also asks the Government to provide information on any developments regarding its policy domestic worker policy, in particular their right to permanent residence.

Article 6. Equality of treatment. The Committee recalls its previous comments regarding the application to migrant workers of the Race Discrimination Ordinance (RDO) No. 29 of 2008, which does not include immigration status and nationality among the prohibited grounds of discrimination. It had noted, however, that the Code of Practice on Employment under the RDO provides that acts based on residency, nationality or citizenship should not be used to hide race discrimination in practice. The Committee notes that HKCTU and FADWU express concerns at the impact of excessive agency fees on the salary level of foreign migrant workers, and arranged underpayment by the employment agencies and employers of domestic workers from India, Indonesia and Sri Lanka. The Committee notes that during the reporting period there were 89 complaints lodged by foreign domestic workers involving alleged overcharging by employment agencies or unlicensed operation of employment agencies; prosecutions were instituted in seven cases with seven convictions, and in some cases, the employment agency was ordered to compensate the victim. The Committee notes that no complaints were lodged by foreign domestic workers with the Equal Opportunities Commission under the RDO regarding matters relating to the Convention. The Committee asks the Government to provide information on the practical application to migrant workers of the Race Discrimination Ordinance of 2008 and the Code of Practice on Employment, including on the number and nature of any legal proceedings in court brought by migrant workers or complaints filed by them to the Equal Opportunities Commission relating to the matters set out in Article 6(1)(a)–(d) of the Convention, including cases of underpayment arranged by employment agencies (referred to in section 3.8.2(1) of the Code) of Indian, Indonesian and Sri Lankan domestic workers.

Invalidity and old age. The Committee notes that domestic workers (both local and foreign) continue to be excluded from the Mandatory Provident Fund Schemes Ordinance (Chapter 485), which provides for an employment-based retirement protection system. The Committee notes the Government’s confirmation that domestic workers are covered by the Criminal and Law Enforcement Injuries Compensation Scheme (CLEIC), the Traffic Accident Victims Scheme (TAVA) and the Emergency Relief Fund (ERF). In addition, they can also benefit from a number of charitable or trust funds providing relief in emergency situations. Noting that the overwhelming majority of the migrant worker population are domestic workers, the Committee asks the Government to make special efforts to examine the situation with a view to taking measures to extend old-age benefits to domestic workers. The Committee asks the Government to provide information on the number of foreign domestic workers that have benefitted or used the services of the above schemes and funds.

Article 6(1)(a)(iii). Accommodation. Further to its observation, the Committee notes that the live-in requirement is specified in the standard employment contract, and that the domestic worker is entitled to suitable accommodation with reasonable privacy under the Revised Schedule of Accommodation and Domestic Duties annexed to the contract. The Committee notes that according to HKCTU and FADWU some conditions of accommodation are below standard but foreign domestic workers cannot file complaints with the Labour Department regarding indecent accommodation, while the Department of Immigration can only prosecute employers when proof is submitted that false information has been provided regarding accommodation. The Committee requests the Government to provide information on any measures taken to allow migrant workers to submit complaints to the Labour Department regarding indecent accommodation, and on the number of cases submitted to the Department of Immigration regarding cases of indecent accommodation or breaches of the standard employment contract in this regard, and their outcome.