REPRESENTATION (article 24) - CHINA, HONG KONG SPECIAL ADMINISTRATIVE REGION - C097 - 2003

Trade Union Congress of the Philippines

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Report of the Committee set up to examine the representation alleging non-observance by China - HONG KONG Special Administrative Region (SAR) of the Migration for Employment Convention (Revised), 1949 (No. 97) made under article 24 of the ILO Constitution by the Trade Union Congress of the Philippines (TUCP)

Report of the Committee set up to examine the representation alleging non-observance by China - HONG KONG Special Administrative Region (SAR) of the Migration for Employment Convention (Revised), 1949 (No. 97) made under article 24 of the ILO Constitution by the Trade Union Congress of the Philippines (TUCP)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Report of the Director-General Second Supplementary Report: Report of the Committee set up to examine the representation alleging non-observance by China Hong Kong Special Administrative Region (SAR) of the Migration for Employment Convention (Revised), 1949 (No. 97), made under article 24 of the ILO Constitution by the Trade Union Congress of the Philippines (TUCP) I. Introduction
1. In communications dated 5 March and 18 March 2003 the Trade Union Congress of the Philippines (TUCP) submitted to the International Labour Office, under article 24 of the ILO Constitution, a representation alleging that the Government of China has failed to observe the provisions of the Migration for Employment Convention (Revised), 1949 (No. 97), in the Hong Kong Special Administrative Region (SAR).
2. It relates to a Convention for which China has sent a notification of acceptance as concerns Hong Kong SAR (7 July 1997) which remains applicable for the SAR.
3. The provisions of the Constitution of the International Labour Organization concerning submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the members has failed to secure in any respect the observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory to the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in case of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of China by a letter dated 25 March 2003, and brought the representation before the Officers of the Governing Body.
5. At its 286th Session (March 2003), the Governing Body, upon the recommendation of its Officers, decided that the representation was receivable, and set up a Committee to examine it, composed of Mr. Sung Ki Yi (Government member, Republic of Korea), Mr. A.W. Tabani (Employer member, Pakistan) and Mr. N.M. Adhyanthaya (Worker member, India).
6. In accordance with article 4, paragraph 1(a) and (c), of the Standing Orders, the Officers of the Government Body authorized the Office: (a) to invite the complainant organization to communicate any additional information before 30 June 2003, it being understood that any additional information communicated by the complainant organization would be communicated to the Government for comment; and (b) to invite the Government to supply additional information along with its statement on the representation by 30 June 2003. A communication was sent in this regard both to the complainant organization and the Government on 7 April 2003 and a letter of reminder was sent to the Government on 23 July 2003.
7. The Government presented its observations in a communication received by the Office on 28 July 2003.
8. The Committee met in November 2003 to adopt this report.
II. Examination of the representation
A. The complainant's allegations
9. In its representation, the TUCP alleges that the Hong Kong administration "approved certain measures that will greatly affect Filipino domestic helpers in Hong Kong". In this connection, the TUCP refers to a statement by the Chief Secretary for Administration to the Legislative Council on the "Report of the Task Force on Population Policy" of 26 February 2003 communicated by the TUCP to the International Labour Office on 18 March 2003 which indicates that "several improvements should be made to enhance the integrity of the mechanism of admitting foreign domestic helpers with the aim of minimizing abuse and displacement of local jobs by foreign domestic helpers". The statement provides details on the specific measures taken by the Hong Kong administration, which according to the TUCP will seriously impact on the Filipino workers in the territory, in violation of the Convention.
10. The specific measures alleged to be harmful to the Filipino workers are as follows. Firstly, the TUCP maintains that the minimum wage of foreign domestic helpers is being reduced by HK$400 per month, effective 1 April 2003, which, according to the TUCP, corresponds to an 11 per cent reduction of the minimum allowable wage (MAW); this, while the mandated wages of civil servants in Hong Kong SAR are being reduced by only 6 per cent effective only in 2004 and 2005. Secondly, the TUCP states that a monthly levy of HK$400 will be imposed under the Employees Retraining Ordinance (ERO) of 1992 on those employing foreign domestic helpers, effective 1 October 2003. According to the TUCP, the savings of employers accruing from the 11 per cent salary reduction represented the same amount as the levy imposed. It is the opinion of the TUCP that, as a result of these measures, foreign domestic helpers, who are the lowest paid and most vulnerable members of Hong Kong society, will bear the burden of retraining local domestic helpers and other displaced workers.
11. In its communication, the TUCP further maintains that a third measure taken by the Hong Kong administration, concerning the possible exclusion of foreign domestic helpers who have not resided in Hong Kong SAR for at least seven years from subsidized public health-care services, is exploitative. The TUCP further explains that under the existing employment arrangements, employers are required only to provide medical treatment but not medical insurance coverage. Additionally, the responsibility of employers does not cover the allowable 14-day period of stay after termination of contract or any extended period in the case of pending labour immigration or police cases. According to the TUCP, the new measure would affect at least 70 per cent of the Filipino domestic helpers who would not be able to afford the prohibitive costs of medical treatment in Hong Kong SAR.
12. Finally, it is alleged that in the case of a violation of employment contracts either by employers or by domestic helpers, foreign domestic workers will be barred from working again in Hong Kong SAR. In its communication, the TUCP maintains that the existing standard employment contract in Hong Kong SAR is lacking in employment security which leads to a situation in which many foreign domestic helpers, for fear of losing their jobs, are forced to follow instructions of employers even if these are not in conformity with the employment and immigration ordinances of Hong Kong SAR. It considers that in these circumstances, it would not be fair for foreign domestic helpers whose contracts have been violated to be barred from returning to Hong Kong SAR to work.
13. The TUCP alleges that the abovementioned measures taken by the Hong Kong administration are "unjust and discriminatory for its workers" and in violation of Convention No. 97. In this connection, the TUCP refers to Article 6 of the Convention which prohibits inequalities of treatment between immigrants and nationals on the basis of nationality, race, religion or sex, which result from legislation or practices of administrative authorities in the areas of remuneration, social security, employment taxes and legal proceedings.
B. The Government's observations
14. In its letter of 21 July 2003, the Government of Hong Kong SAR states that it does not consider that there is any violation of Convention No. 97 with respect to the allegations made by the TUCP.
15. The Government explains that "imported" workers, including those employed under the labour importation schemes and foreign domestic helpers, enjoy the same rights and benefits under the labour legislation as local workers, and have equal access to justice. Additionally, by virtue of the standard employment contract drawn up by the Government, domestic workers are entitled to benefits not usually available to local employees such as the provision of accommodation, free passage to home countries, free medical treatment by their employer and a minimum wage.
16. The Government further indicates that in 2003 it undertook a comprehensive review of its policy on foreign domestic helpers in the context of its population policy review and made a number of recommendations highlighted in the report of the Task Force on Population Policy, appended to its letter of 21 July 2003. The Task Force recommended: (a) to introduce a levy for employment of foreign domestic helpers, set at the same level (i.e. HK$400) as that imposed under the Supplementary Labour Scheme; (b) to reduce the MAW of foreign domestic helpers by HK$400 (or 10.9 per cent), applicable to new contracts and renewal of contracts made on or after 1 April 2003; (c) to step up enforcement action against abuse of the system for foreign domestic helpers; and (d) to prevent exploitation of workers and to promote employment opportunities for local domestic helpers. The Task Force also recommended adopting the principle of the "seven-year" residence requirement for benefits from heavily subsidized public funds.
17. The Government states that there is no basis for any contention that the adjustment of the MAW and the levy on employers of foreign domestic helpers seek to discriminate against foreign domestic helpers in favour of local employees, as the terms of employment of the two groups cannot be compared. The Government first states that wages are freely negotiated between employers and local employees, but foreign domestic helpers are entitled to receive a wage not less than the MAW. The Government indicates that the MAW is subject to annual review and that the wage reduction is reasonably based on a set of economic indicators (for the period 1999-2002) which form the mechanism for setting the annual minimum wage, and which include factors such as the Consumer Price Index (A), the wage level of workers in comparable occupational categories, the median monthly household income, the gross domestic product and the unemployment rate. The Government adds that the following indicators justified that a downward revision was reasonable: (a) the median monthly household income of local households with foreign domestic helpers dropped by 17 per cent; (b) the median monthly employment earnings of workers in elementary occupations (to which also belong resident and foreign domestic helpers) had declined by about 16 per cent; (c) the median monthly employment earnings of service workers and shop sales had dropped by around 11 per cent; and (d) the Consumer Price Index (A) had fallen by around 10 per cent and the seasonally adjusted unemployment rate had risen from 6.3 per cent to 7.2 per cent.
18. The Government further states in its reply that the adjustment of the MAW and the adjustment of civil service salaries should be dealt with as two entirely different matters. The MAW is reviewed with reference to economic and employment conditions in Hong Kong, whereas adjustment to civil service pay is by reference to a separate mechanism which takes into account factors such as the state of Hong Kong's economy, budgetary considerations, changes in the cost of living and staff pay proposals. Given the distinctly different nature of these two matters, the Government considers it inappropriate to refer to the adjustment of the civil service salary when considering adjustment of the MAW. Therefore, it should not be viewed as applying less favourable treatment to local employees in respect of remuneration under Article 6(1)(a)(i) of Convention No. 97.
19. With regard to the imposition of an Employees Retraining Levy on employers of foreign domestic helpers, the Government states in its communication that the Employees Retraining Ordinance (ERO) was enacted in 1992 to establish the Employees Retraining Board (ERB) for retraining of local employees in Hong Kong. Employers importing workers under the various labour importation schemes are required to pay an Employees Retraining Levy of HK$400 per month to fund the activities of the ERB. The importation of foreign domestic helpers will be designated as a labour importation scheme under the ERO (Cap 432) with effect from 1 October 2003. The review of the policy on foreign domestic helpers concluded that the Employees Retraining Levy should also apply to foreign domestic helpers' employers as they enjoy services offered by low-skilled imported workers rather than local employees. The Government further argues that it is a well-established principle that employers hiring imported low-skilled workers should contribute towards the training and retraining of the local workforce. Moreover, given the increasing demand for training and retraining of the local workforce as a result of high unemployment and economic restructuring and the drop in levy income of the ERB, there is a clear case for expanding the source of levy income to the ERB.
20. According to the Government, the adjustment of the minimum wage and the levy on employers of foreign domestic helpers are two different issues and the employment levy is not an employment tax, directly or indirectly, imposed on foreign domestic helpers. While the levy, the amount of which has been fixed since 1992, will bring employers of foreign domestic helpers on a par with other employers of imported employees under the ERO, the MAW is due for review, whether or not an overall review of the foreign domestic helpers is being conducted. According to the Government, there are numerous cases where employers of foreign domestic helpers continue to pay foreign domestic helpers a wage higher than the revised MAW after the introduction of adjustment on 1 April 2003. There is therefore no discrimination against foreign domestic helpers or passing the burden for retraining to a group of migrant workers. The Government further states that, as Article 6 of Convention No. 97 does not affect the right of a State to admit or refuse a foreigner to its territory, a levy extracted from the prospective employer cannot be regarded as a discriminatory measure which contravenes either the wording or the spirit of Article 6.
21. With regard to the possible exclusion of foreign domestic helpers from the subsidized health-care services, the Government explains that at present the heavily subsidized public health-care service is available to local residents and the transient population, including foreign domestic helpers. After careful consideration in the context of the formulation of an overall population policy, the Government will apply a uniform seven-year residence rule for providing all heavily subsidized social services, including public health-care benefits. Eligibility is based on a seven-year residence requirement and reflects the contribution a resident has made towards the economy over a sustained period of time, and is also one of the requirements to obtain permanent resident status. The policy will be applied in the long run to the transient population, including foreign domestic helpers and imported workers.
22. The Government further adds that the right of foreign domestic helpers to enjoy, under the standard employment contract, free medical treatment in the event of illness and injury, whether or not it is attributable to employment, would not be compromised by the seven-year rule. Thus, there would be no need for foreign domestic helpers to bear their medical expenses in Hong Kong.
23. With regard to the entitlement of foreign domestic workers to medical care during the 14-day rule or any extended period of stay, the Government claims that Article 6 of the Convention does not apply to foreign nationals whose employment contracts have ended but who continued to stay in Hong Kong as they would no longer be migrant workers. It is the Government's view that as the subsidized health-care benefits are provided wholly out of public funds, the special arrangement whereby medical benefits for foreign domestic helpers are provided by their employers instead of the Government would fall within the limitation set out in Article 6(1)(b)(ii) of Convention No. 97. The eligibility of the subsidized health-care benefits is based on the length of residence and not nationality and as such does not run counter to Article 6. The Government further states that the entitlement for foreign domestic helpers to medical coverage under the standard employment contract is a benefit not usually available to local employees of comparable skill.
24. As regards the TUCP's allegations concerning employment protection, the Government explains that the Employment Ordinance (Cap 57) is equally applicable both to foreign domestic helpers and to local employees and accords adequate protection to employees against unreasonable dismissal. The Government indicates that it is also working on an amendment to the legislation to allow the Labour Tribunal to make a reinstatement or re- engagement order without the need for consent from the employer in the case of unreasonable or unlawful dismissal. The Government adds that for applications relating to employment of foreign domestic helpers received by the Immigration Department on or after 1 April 2003, all foreign domestic helpers and their employers are required to give an undertaking to abide by the employment and immigration laws of Hong Kong and the conditions of the employment contract. The purpose of the undertaking is to protect the rights and benefits of foreign domestic helpers and the employment opportunities of local workers. Breaching the contract may lead to the prohibition of employment of foreign domestic helpers for employers and employment in Hong Kong for foreign domestic helpers for a certain period of time. The Government also states that those foreign domestic helpers who are under pressure from their employers to breach the undertaking against their will should forthwith report their cases to the Labour Department or Immigration Department, as appropriate, for suitable follow-up action. Those employers who break the law will be prosecuted.
III. The Committee's conclusions
25. The Committee notes that this representation involves allegations that Article 6 of Convention No. 97 was violated by the Government of China through the adoption of a series of measures, announced in a statement of 26 February 2003, by the Chief Secretary for Administration to the Legislative Council, which would seriously affect the situation of Filipino domestic workers in Hong Kong SAR.
26. The Committee notes first that at the time the representation was received (March 2003), the complainant organization alleged that the minimum wage of foreign domestic helpers was going to be reduced by HK$400 per month, effective 1 April 2003, and that a monthly levy of HK$400 would be imposed under the Employees Retraining Ordinance of 1992 on employers of foreign domestic helpers, effective 1 October 2003. The TUCP maintains that the savings accruing from this salary reduction represent the same amount as the levy imposed, and that foreign domestic helpers, who are the lowest paid and the most vulnerable members of Hong Kong society, would bear the burden of retraining local domestic helpers and other displaced workers. The Committee further notes the comparison made by the TUCP between the MAW of foreign domestic helpers and the mandated wages of civil servants, the latter being reduced by 6 per cent, effective in 2004 and 2005, compared to an 11 per cent wage reduction for foreign domestic helpers.
27. The Committee recalls that under Article 6(1)(a)(i) of Convention No. 97, ratifying States undertake to apply, without discrimination in respect of nationality, race, religion, or sex, to immigrants lawfully in its territory, treatment no less favourable than that which it applies to its own nationals in respect of, among others, remuneration in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities.
28. The Committee notes that according to section 14 of the ERO the Chief Executive of the Council may, from time to time, approve a labour importation scheme, under which a levy will be payable by the employers to the Director of Immigration in respect of each imported worker to be employed. In this regard, the Committee notes the decision of 25 February 2003 by the Chief Executive to designate foreign domestic helpers as a labour importation scheme under the Employees Retraining Ordinance of 1992 and that in accordance with schedule 3 of the ERO, a monthly Employees Retraining Levy of HK$400 is imposed on employers of foreign domestic helpers. The Committee also notes that the Chief Executive ordered a reduction by HK$400 (or almost 11 per cent) of the current MAW of HK$3,670 effective 1 April 2003, and that both decisions have come into force.
29. The Committee further notes from the supplementary information provided by the Government that in addition to the newly established labour importation scheme of foreign domestic helpers, the only labour importation scheme in operation under the ERO of 1992 is the Supplementary Labour Scheme (SLS). The SLS comprises 833 male and 264 female "imported" workers (as of 30 April 2003) while the number of foreign domestic workers amounts to 237,104 by the end of 2002, of whom 62.6 per cent are Filipinos.
30. The Committee notes that in a communication of 7 April 2003, the Office, authorized by the Officers of the Governing Body, requested supplementary information, including statistics disaggregated by sex, from the complainant organization and the Government on, among others, the number of foreign workers employed and their corresponding wages and occupations as well as information on the conditions of employment, including wages and benefits of local domestic workers. The Committee notes that statistics provided by the Government on sectors of activity and corresponding wages of imported workers under the Supplementary Labour Scheme indicate that women are concentrated in the lower paid jobs of care workers and machine operators whose monthly wages are between HK$5,350 and HK$6,999 while the wages among imported workers in male-dominated sectors range from HK$7,210 to HK$17,017. Foreign domestic helpers, with a minimum wage of HK$3,270, effective 1 April 2003, are the lowest paid workers under the labour importation scheme.
31. The Committee notes that according to the Government, the MAW is reviewed with reference to economic and employment conditions in Hong Kong, whereas adjustment to civil service pay is by reference to a separate mechanism which takes into account factors such as the state of Hong Kong's economy, budgetary considerations, changes in the cost of living and staff sides pay proposals. The Committee notes that the adjustment of the MAW has been based on factors including, among others, the wages paid to comparable categories of workers. In this connection the Government refers to the fact that the median monthly employment earnings of workers in elementary occupations (to which also belong resident and foreign domestic helpers) has declined by about 16 per cent and that the median monthly employment earnings of service workers and shop sales personnel has dropped by around 11 per cent. Additionally, the Government indicates in its reply that there is no regulation on the employment terms and conditions of local domestic helpers and that wages are freely negotiated between employers and local domestic helpers, but that foreign domestic helpers receive an MAW. The Committee notes in this regard that they may negotiate higher wages. However, the Committee also notes from the report of the Task Force on Population Policy, appended to the Government's reply, that "the main reasons for employing foreign domestic helpers were generally lower wages for foreign domestic helpers when compared to those of local domestic helpers, their overnight stay with the employers [ ] and their commitment to the employment contract".
32. The Committee considers that to the extent that higher wages are being paid to local domestic helpers than those paid to foreign domestic helpers, or to those national workers in comparable job categories, this, if it were verified, would contravene the Convention's goal of equal treatment between migrant workers and nationals as regards remuneration. The Committee notes however that the complainant organization does not allege that higher wages are paid to local domestic workers nor does the TUCP or the Government provide any information on the wages paid to civil servants or other workers in comparable job categories. Furthermore, while there is an indication that wages of comparable occupational categories of workers have also declined, there is no further information provided on the wages paid to these workers.
33. The Committee therefore considers that more information is needed to permit a comparison between foreign workers and nationals and to determine whether there has been any contravention of Article 6(1)(a)(i) of the Convention. It therefore asks that the Government be invited to provide, in its next article 22 report on the application of the Convention, specific information regarding the wages paid to local domestic workers and any other categories of local employees that would allow comparisons to be made, and that this be followed up by the Committee of Experts.
34. As regards the decision to impose an Employees Retraining Levy on employers of foreign domestic helpers, the Committee notes that the Government states that it is a well-established principle that employers hiring imported low-skilled workers should contribute towards the training and retraining of the local workforce. While noting the Government's explanation that the Employees Retraining Levy should apply to foreign domestic helpers' employers because they enjoy services offered by low-skilled imported workers rather than local employees, the Committee also notes from the statement by the TUCP as well as the abovementioned statistics on wages of imported workers that foreign domestic helpers, who are predominantly women, are already the lowest paid category of migrant workers.
35. The Committee points to the observation by the Committee of Experts that "equality of treatment as regards remuneration may be threatened if the employment of a migrant is subject to a special tax" (paragraph 448 of the General Survey of 1999 on migrant workers). The Committee also wishes to draw attention to the observation made by the Committee of Experts in paragraph 393 of its General Survey of 1999 on migrant workers, where it cautions against the adoption of levy policies on the grounds that "such a tax tends to provide an incentive for people to enter into illegal employment relationships, or it tends to be passed on to the migrant workers in the form of salary deductions or lower wages". (Endnote 1)
36. The Committee considers that, to the extent that the imposition of the Employees Retraining Levy would result in a practice of lower wages whereby employers would deduct the amount of the levy from the established MAW paid to foreign domestic workers, this practice, if it were verified, would constitute a violation of Article 6(1)(a)(i) of the Convention concerning equality of treatment with regard to remuneration. In this regard the Committee notes that in reply to its requests for additional information concerning the underpayment of claims by foreign domestic workers against their employers, the Government provides statistical data indicating 16 underpayment complaints during March 2003 and 17 underpayment claims for April 2003. The Committee notes that the Government is taking measures to encourage foreign domestic helpers to lodge complaints on the underpayment of wages and hopes that it will continue to do so. It asks the Committee of Experts to invite the Government to provide, in its next article 22 report on Convention No. 97, updated information on the number of underpayment complaints as well as the impact of the measures taken by the Government to encourage foreign domestic helpers to forward such complaints, since the entry into force of the measures concerning the reduced MAW for foreign domestic helpers and the levy imposed on employers of these workers.
37. Nevertheless, while the Committee has no information on the actual wages paid to foreign domestic workers above the MAW, it can be easily assumed that their monthly wage would be close to this MAW by virtue of the standard employment contract drawn up by the Government. While noting that the Employees Retraining Levy of HK$400 is only imposed on the employer, the Committee cannot ignore the fact that the monthly levy of HK$400 imposed is almost equivalent to 11 per cent of the workers' monthly wage, a very high amount and approximately the same amount as the wage reduction, effective 1 April 2003. Taking into account the requirements of Article 6 of the Convention that non-nationals shall not be treated less favourably than nationals, and the principles of equity and proportionality, the Committee is of the opinion that imposing the same levy of HK$400 on the employers of all imported workers, irrespective of the amount of the workers' salaries, and a reduction of the same amount of the MAW of foreign domestic workers, who are already the lowest paid category of workers, would not be equitable. The Committee therefore urges the Government to undertake a review of the above-described levy and minimum wage policies taking into account principles of equity and proportionality.
38. With regard to equality of treatment as regards social security, the Committee notes the allegation made by the TUCP that the exclusion of foreign domestic helpers who have not resided for at least seven years in Hong Kong SAR from subsidized public health care is exploitative. The TUCP also explains that under the existing employment contracts, employers are obliged to cover only medical treatment and not medical insurance, and that this responsibility does not cover the 14-day period of stay after termination of contract or any extended period in case of pending labour administration or police cases.
39. The Committee takes note of the recommendation by the Task Force on Population Policy on this issue and the confirmation by the Government that it will apply a uniform seven-year residence rule for providing all heavily subsidized social services, including public health-care benefits. The Government also states that the subsidized health-care benefits are provided wholly out of public funds and that the seven-year residence requirement reflects the contribution a resident has made towards the economy over a sustained period of time and is also one of the requirements to obtain permanent resident status. In the view of the Government, the special arrangement whereby medical benefits for foreign domestic helpers be provided by their employers, would not be compromised by the seven-year rule and would fall within the limitation set out in Article 6(1)(b)(ii) of Convention No. 97.
40. The Committee points out that Article 6(1)(b) provides for equality of treatment between immigrants lawfully in the country and nationals as regards social security. Under this provision, social security comprises "legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, any contingency which, according to national laws and regulations, is covered by a social security scheme". The Committee notes that pursuant to clause 9(a) of the current standard employment contract the foreign domestic worker is entitled during the two-year period of employment and excluding the period during which the helper leaves Hong Kong of his or her own volition and for personal purposes, to medical treatment by the employer in the case of illness or personal injury. Medical treatment includes "medical consultation, maintenance in hospital and emergency dental treatment". Clause (b) of the contract provides that in the case of occupational injury or disease arising out of and in the course of employment, the employer shall pay compensation in accordance with the Employees Compensation Ordinance (Cap 282). The Committee asks the Government to take all necessary measures to ensure that the provisions of the employment contract are strictly enforced.
41. The Committee recalls that subsection (ii) of Article 6(1)(b) allows that national laws or regulations may prescribe special arrangements as regards "benefits or portions of benefits which are payable wholly out of public funds". However, the Committee points out that these provisions cannot be interpreted as a basis for the automatic exclusion of any given category of migrant workers from social security benefits. As such, special arrangements with regard to non-nationals that have the effect of depriving non-residents of foreign nationality of their right to enjoy health-care benefits would be contrary to the spirit of the Convention. Furthermore, the Committee determines that the seven-year residence requirement for eligibility to public health-care services is too long. (Endnote 2) It further believes that the point of reference for this decision (i.e. the required period to obtain permanent resident status) is inappropriate. Therefore, the Committee concludes that the automatic exclusion of all imported workers, including foreign domestic helpers, who have not resided for at least seven years in Hong Kong SAR from enjoying any public health-care services is not in line with Article 6(1)(b)(ii) of the Convention.
42. A last allegation made by the TUCP concerns the fact that in the case of violation of employment contracts either by employers or by foreign domestic helpers they will be barred from working again in Hong Kong SAR. The TUCP maintains that the existing standard employment contract in Hong Kong SAR is lacking employment security and that due to pressure by employers, foreign domestic workers would feel obliged to follow their employer's instructions even if they contravene labour and immigration law. According to the TUCP, in such a situation it would not be fair to bar foreign domestic workers from entering Hong Kong again and it considers the measure to be in violation of Convention No. 97. The Committee notes the Government's explanation that the Employment Ordinance is equally applicable to foreign domestic helpers and accords adequate protection to employees against unreasonable dismissal. The Committee notes the provisions in the Employment Ordinance, Chapter 57 (as amended up to 17 May 2002) protecting against dismissal as well as the measures indicated by the Government to amend the legislation to increase protection. The Committee also notes, from the copies provided by the Government, the undertakings by the employer and the domestic worker to abide by the employment and immigration laws of Hong Kong SAR and the conditions of the employment contract. The undertakings provide respectively that breaching the contract may lead to the prohibition of employment of foreign domestic helpers for employers, and employment in Hong Kong SAR for foreign domestic helpers for a certain period of time. The Government indicates that those foreign domestic helpers who are under pressure from their employers to breach the undertaking against their will should forthwith report their cases to the Labour Department or Immigration Department, as appropriate, for suitable follow-up action.
43. The Committee recalls that Convention No. 97, in particular Article 6(1)(d), provides for equality of treatment between migrant workers and nationals with regard to legal proceedings, but does not include any provision concerning termination of contracts and rights of migrant workers in the case of loss of employment, which is referred to in other international labour standards. (Endnote 3) The Committee notes that the complainant organization does not allege any unequal treatment between foreign domestic workers and nationals as regards their access to legal proceedings.
44. From the above, the Committee concludes first that the undertakings by the employer and the domestic worker to abide by the employment and immigration laws of Hong Kong SAR and the conditions of the employment contract do not constitute a violation of Article 6(1)(b)(ii) and (d) of Convention No. 97. Secondly, the Committee determines that with regard to the proposed measure to exclude in future foreign domestic helpers, who have not resided for at least seven years in Hong Kong SAR, from public health-care services, the residence requirement of seven years would be too long and the automatic exclusion of these workers from all public health-care benefits would contravene Article 6(1)(b)(ii) of Convention No. 97. Finally, as regards the measures taken by the Government to reduce the MAW of foreign helpers and to impose an Employees Retraining Levy on the employers of these workers, the Committee must determine, on the one hand, that in this regard insufficient information was provided by both the complainant organization and the Government to permit it to reach any definite conclusions as to whether the Convention was in fact contravened as regards the provisions on equality of treatment between immigrants lawfully in the country and nationals in the area of remuneration. On the other hand, the Committee believes that the imposition of the same levy on the employers of all imported workers, including domestic workers whose wages are already the lowest amongst migrant workers, while at the same time reducing the MAW wage of these workers with the same amount, would not be equitable.
IV. The Committee's recommendations
45. The Committee recommends that the Governing Body:
(a) approve the present report, and in particular the conclusions contained in paragraph 44 on the basis of the information presented to the Committee;
(b) in light of the provisions on equality of treatment as regards social security, urge the Government not to take the measure to exclude foreign domestic helpers, who have resided for at least seven years in Hong Kong SAR, from public health-care services, so as to remain in conformity with Article 6(1)(b) of Convention No. 97;
(c) urge the Government to take all necessary measures to ensure that the social security provisions of the standard employment contract are strictly enforced;
(d) urge the Government to review the above-described levy and minimum wage policies on imported workers, especially foreign domestic workers, taking into account the Committee's conclusions and recommendations as to the requirements of Article 6 of Convention No. 97 that non-nationals shall not be treated less favourably than nationals and the principles of equity and proportionality;
(e) invite the Government of China to include detailed information in its next report on the application of Convention No. 97 to Hong Kong SAR under article 22 of the ILO Constitution, regarding the following:
(i) the wages paid to local domestic workers and any other comparable categories of local employees that would allow comparisons to be made as regards the remuneration of foreign domestic workers and other comparable categories of local employees; and
(ii) updated information on the number of underpayment complaints as well as the impact of the measures taken by the Government to encourage foreign domestic helpers to forward such complaints since the entry into force of the measures concerning the reduced MAW for foreign domestic helpers and the levy imposed on employers of these workers, so that the Committee of Experts on the Application of Conventions and Recommendations can continue to examine this matter; and
(f) declare closed the procedure initiated as a result of the representation of the TUCP alleging non-observance of the Migration for Employment Convention (Revised), 1949 (No. 97).
Geneva, 17 November 2003.
(Signed) S.K. Yi,
Chairperson.
A.W. Tabani
N.M. Adhyanthaya
Point for decision:
Paragraph 45.
Endnote 1
Para. 10 of the note on the work of the Meeting, GB.267/STM/3/1, cited in the General Survey of 1999 on migrant workers, para. 393, fn. 34.
Endnote 2
As a point of reference, it should be noted that Article 4(1) of the Equality of Treatment (Social Security) Convention, 1962 (No. 118), prohibits all residence requirements with regard to the principle of equality of treatment between nationals and non-nationals as regards health-care benefits.
Endnote 3
In particular, the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), and the Termination of Employment Convention, 1982 (No. 158), which have not been ratified by China or apply to Hong Kong SAR.