Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s report for the period 1 June 2006 to 31 May 2008 in reply to its previous comments. It also notes the annual reports of the Labour Department for 2006 and 2007 which contain detailed information and figures on labour inspection activities and results. The Committee notes with interest in particular the activities and results achieved in the framework of the Safety and Health at Work programme in the most hazardous activities, such as industry, construction, boilers, etc. Detailed information on the subject is available through the web site link at www.labour.gov.hk/eng/osh/content.htm.

Article 3, paragraph (a) and (b), Articles 14 and 18 of the Convention. Enforcement and educational activities aimed at ensuring the application of legal provisions relating to work conditions of work. The Committee notes with interest that, according to the annual report for 2006, a key element in the enforcement of the occupational safety and health legislation is the provision of advice on accident prevention. Among other activities, special promotional visits were undertaken to encourage employers to adopt a self-regulatory approach to the management of risks at the workplace and regular enforcement inspections were carried out to various workplaces to monitor whether those responsible have observed all the related statutory requirements set out in safety legislation. Television and radio announcements, leaflets, posters, newspapers, the departmental homepage and seminars on the Compensation Ordinance were used to strengthen the promotion of the timely reporting of work accidents by employers. Promotional activities have focused on the statutory obligation of employers to take out insurance policies covering their liability for injury at work in respect of their employees. The Committee notes with satisfaction that blitz operations targeting various high-risk work activities were conducted not only on normal working days, but also at night and during holidays, to detect and clamp down on offending contractors. The annual report also indicates that establishments with a poor record of safety performance are still under close surveillance, which has resulted in significant improvements.

Similar territory-wide blitz operations and inspections were conducted to detect wage offences and resulted in various penalties, including custodial sentences in three cases in 2006. The annual report for 2007 indicates that seven custodial sentences were imposed during territory-wide inspection campaigns launched with the collaboration of trade unions and targeted at offence-prone trades for the non-payment of wages through an early warning system. The Committee notes with interest the indication in the annual report that vigorous inspections have been carried out of workplaces in which government service contractors employ non-skilled workers with a view to protecting their statutory rights and benefits. As a result of the concerted efforts of the Labour Department and procuring departments through increased monitoring and enforcement, the annual report indicates that there has been a great improvement in compliance with labour laws.

Article 3, paragraph 2, and Article 17. Additional functions entrusted to labour inspectors. Objectives of the Convention. In its previous comments, the Committee noted in the Annual Report of the Labour Department for 2005 that joint operations were carried out by the labour inspectorate, the police and the Immigration Department, leading to the arrest of 538 illegal workers and 237 employers suspected of employing illegal workers. The Committee also noted that such operations had led to the imprisonment of foreign workers who do not possess the necessary residence authorization. It noted in the annual report an illustration of suspected illegal workers being arrested, sitting on the ground with their faces to the wall. The Committee expressed its concern that the exercise by labour inspectors of duties related to the monitoring of the illegal immigration of workers could be a serious obstacle to the discharge of their duties of supervising conditions of work and the protection of workers. Referring to paragraph 78 of its General Survey of 2006 on labour inspection, it asked the Government to take measures aimed at re-establishing the primary duties of the labour inspectorate, and limiting its role in the enforcement of the legislation respecting the illegal immigration of workers to the extent necessary for the prosecution of employers who are in breach of the rules and for the protection of the workers concerned.

The Committee notes that, according to the Government, enforcement actions, such as the arrest and detention of illegal workers suspected of breaches of the Immigration Ordinance were carried out by officers of other law enforcement authorities, such as the police and the Immigration Department. The Government further indicates that the role of labour inspectors in combating illegal employment has not posed any obstacle to the discharge of their duties in enforcing legislative provisions on conditions of work and the protection of the workers. However, the Committee is bound to note that, according to an illustration in the annual report of the Labour Department for 2006, subtitled “labour inspectors and the police detecting suspected illegal workers in a joint operation” the Government’s statement is not in accordance with reality. The purpose of the joint operation was clearly contrary to the objective of the protection of the worker shown in the photograph referred to above. The worker appears to have both hands tied behind his back and two men are pushing him forward with another figure preceding them who is clearly a labour inspector. Such a situation is not acceptable, as the Convention provides for the protection by the labour inspection system of workers engaged in their work, regardless of their status in relation to immigration laws. The fact that the role of the labour inspector consists, on the one hand, of targeting in the workplace workers suspected of being “illegal” and, on the other hand, of witnessing their mistreatment is in total contradiction with the protective function entrusted to labour inspectors by the Convention. Noting in the annual report for 2007 that 170 further similar operations were undertaken with the police and the Immigration Department, the Committee is bound once again to draw the Government’s attention to the fact that any cooperation of the labour inspectorate with immigration authorities should be carried out cautiously, bearing in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers and to improve their working conditions (paragraph 161 of the General Survey on labour inspection). The Committee therefore once again urges the Government to take the necessary measures as soon as possible to ensure that labour inspectors are no longer involved in joint operations which, by granting the police and immigration authorities access to workplaces, allow them to arrest workers on the grounds of their illegal residence situation. The Government is also asked to ensure that the collaboration of labour inspection officers with the said authorities is limited to legal proceedings against employers found to be in violation of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, and to inform the ILO of the action taken to this end and the results achieved.