ARTICLE 11
EQUALITY IN EMPLOYMENT AND LABOUR RIGHTS
EQUALITY IN EMPLOYMENT AND LABOUR RIGHTS
The Government of the PRC reserves the right for the HKSAR to apply any non-discriminatory requirement for a qualifying period of employment for the application of the provisions contained in article 11(2) of the Convention. Regarding the Committee’s view, at paragraphs 8 – 9 of its previous Concluding Observations, that consideration should be given to withdrawing the reservation, we consider that the existing requirement of a continuous contract for entitlements to statutory maternity leave and maternity leave pay is necessary, and taking into account the interests of both employers and employees.
The Government’s position regards the reservation of the right to apply all its legislation and the rules of pension schemes affecting retirement pensions, survivors’ benefits and other benefits in relation to death or retirement (including retirement on grounds of redundancy), whether or not derived from a social security scheme remains unchanged as explained in paragraph 214 in the previous report.
In 2017, 51% of the female population aged 15 and above were economically active and they accounted for 45% of the labour force. A large proportion of the female labour force was in the age group of 30-59, which accounted for 33% of the total labour force. Detailed statistics on labour force and labour force participation rate by sex and age are given in Annex 11A and Annex 11B.
The unemployment rate for females is generally lower than that for males. In 2017, the unemployment rates for females and males were 2.9% and 3.4% respectively (Annex 11C). After excluding foreign domestic helpers (the great majority of them are females), the unemployment rate for females was 3.4% and the gap between the unemployment rates for males and females narrowed.
The general legislative protection against discrimination in the employment field remains unchanged. In general, women enjoy the same rights as men to participate in the labour force and in the jobs of their choices. These rights are also protected and ensured by the SDO.
The statutory protection against discrimination on the grounds of marital status and pregnancy under the SDO and FSDO remains as explained in paragraph 222 of the previous report.
Besides the SDO and FSDO, the Employment Ordinance (Cap. 57) (EO) provides protection against dismissal during pregnancy and maternity leave and the position remains as reported in paragraph 223 of the previous report.
As stated in paragraph 2.5, the Government has extended the protection and territorial scope of the SDO through the Sex Discrimination (Amendment) Ordinance 2014.
We note the Committee’s view in paragraphs 62 – 63 in its previous Concluding Observations regarding maternity leave. To improve maternity benefits for female employees, as announced in the 2017 Policy Address, the Government is conducting a review on improving statutory maternity leave. The review will take into account the needs of working women and the affordability of enterprises, and will make reference to international standards and statutory maternity benefits of other places.
With effect from 27 February 2015, eligible male employees are entitled to 3 days’ paternity leave to be taken consecutively or separately for each confinement of their spouse/partner. The paternity leave shall carry pay at a daily rate of fourth-fifths of their average wages if they fulfil other requirements as stipulated in the law.
Some commentators welcomed the introduction of paternity leave but suggested that it should be further extended. As announced in the 2017 Policy Address, the Government has proposed to extend the duration of statutory paternity leave to five days and the Labour Advisory Board (LAB)2 and the LegCo Panel on Manpower are supportive of the proposal. The Government has introduced a Bill to increase statutory paternity leave to five days into the LegCo in June 2018.
The position of the EO on protection for part-time and casual workers remains as reported in paragraph 231 of the previous report.
As reported to the Committee in paragraphs 232 – 233 of the previous report, the Government reviewed the continuous contract requirement3 under the EO and put forth different possible approaches of improvement for the consideration of the LAB. After rounds of in-depth deliberations in 2013 and 2014, employers’ and employees’ representatives of the LAB could not reach a consensus owing to the complexity of the issue and the divergent views of different stakeholders. The Government has planned to conduct a new round of statistical survey to capture the latest characteristics and employment patterns of employees working short duration and/or working hours and would revisit this issue at the LAB at an opportune time.
The position remains as reported in paragraphs 234 – 236 of the previous report.
The SMW rate, initially set at HK$28 (US$3.6) per hour in May 2011, was increased to HK$30 (US$3.8) in May 2013, HK$32.5 (US$4.1) in May 2015, and HK$34.5 (US$4.4) in May 2017. The Minimum Wage Commission is conducting a new round of review on the SMW rate and will submit a recommendation report to the Chief Executive in Council by end-October 2018.
The implementation of SMW has been smooth, and the employment earnings of low-income workers have shown discernible improvement. In December 2017 to February 2018, the average monthly employment earnings of full-time employees4 in the lowest decile group rose by a cumulative 55.8% (or 23.3% in real terms after discounting inflation) as compared with the quarter before the introduction of SMW. The positive income prospects, coupled with a largely stable labour market, have helped attract more people, especially older female to enter or re-enter the labour market.
The Government set up in April 2013 the Standard Working Hours Committee (SWHC) to explore working hours policy options suitable for the socio-economic situation in Hong Kong. The SWHC submitted a report with its recommendations in January 2017, which was endorsed by the Government in June 2017 as a general framework for guiding future formulation of the working hours policy.
Given the divergent views on the legislative proposals put forward by the SWHC, the Government will continue to listen to the views of the community so as to identify feasible options of enhancing the working hours policy. Meanwhile, LD has through its industry-based tripartite committees, which comprises representatives from employers, employees and the Government, kick-started the work of formulating 11 sector-specific working hours guidelines. These guidelines will cover suggested working hours arrangements, overtime compensation methods and good working hours management measures for employers’ reference and adoption so as to improve the working hours arrangement of employees (including female employees).
EOC has drawn up a total of four sets of Code of Practice on Employment to provide practical guidance in facilitating compliance with four anti-discrimination ordinances by the public (including both employers and employees). From EOC’s operational experience, the majority of complaints received under the SDO are employment-related. In this connection, EOC is currently revising the existing Code of Practice under the SDO as part of their review exercise to update the Code to keep up with Hong Kong’s socio-economic development.
Hong Kong takes into account the multi-pillar model advocated by the World Bank and has adopted four pillars, including the multi-tier social security system (the zero pillar), the Mandatory Provident Fund (MPF) Scheme and other occupation-based retirement scheme (the second pillar), voluntary savings (the third pillar), as well as public services, family support and personal assets (the fourth pillar). 5
The Commission on Poverty (CoP) conducted a public engagement exercise entitled “Retirement Protection Forging Ahead” from December 2015 to June 2016. In early 2017, the Government announced a series of measures to strengthen the retirement protection system to address the various needs of elderly persons in terms of social security, medical, community care, financial management, etc. The relevant measures are being implemented progressively.
As committed in the 2017 Policy Address, the Government put forth in March 2018 a preliminary idea on abolishing the arrangement of offsetting severance payment and long service payment under the EO with employers’ mandatory contributions under the MPF System so as to preserve the MPF contributions for the retirement of employees. The 2018-19 Budget has earmarked HK$15 billion for implementing the measures to abolish the “offsetting” arrangement. The Government would refine the preliminary idea in the light of the views collected from major stakeholders including the business and labour sectors.
In 2016, the poor population and poverty rate of females were generally higher than those of males, mainly because more females (especially those who were older and retired) resided in economically inactive households with no employment earnings. The proportion of females receiving social security is prone to be higher. The share of females residing in households benefiting from the major social security schemes was also higher than the corresponding figures for males. As such, the gap between the male poverty rate and that of females narrowed slightly after policy intervention. Detailed statistics on poor population and poverty rate by sex are given in Annex 11D.
The Government reinstated in December 2012 the CoP. Chaired by the Chief Secretary for Administration and comprising both ex-officio members and non-official members from various sectors in the community, the CoP has been an important platform for deliberation on poverty alleviation initiatives, with particular emphasis on fostering tripartite partnership among the community, the business sector and the Government.
In order to encourage self-reliance through employment and alleviate inter-generational poverty, the Low-income Working Family Assistance (LIFA) Scheme was introduced in May 2016 to provide financial support to low-income working families who are not receiving the Comprehensive Social Security Assistance (CSSA). The subsidies under the LIFA were tied to employment and working hours to encourage self-reliance. The Scheme has also put in place a lower working hour requirement for single parents to meet their special needs. As at end-March 2018, about 40 000 families (about 145 000 persons) benefitted from the LIFA.
The Government has conducted a comprehensive review of the LIFA Scheme in 2017 and introduced a series of enhancements with effect from 1 April 2018, including extending the Scheme to cover singleton households, allowing household members to aggregate their working hours, relaxing the income requirements, increasing the rates of allowances, etc. The LIFA Scheme was also renamed as the Working Family Allowance (WFA) Scheme. It is believed that the new arrangements under the WFA Scheme will benefit more working low-income households (including women and single parents).
LD and Employees Retraining Board provide a wide range of employment services and retraining programmes to job seekers, including women, as well as youth. Details of these services and programmes are set out in Annex 11E.
As at end-March 2018, there were around 4 800 imported workers under the Supplementary Labour Scheme (SLS) and over 376 000 foreign domestic helpers (FDHs) employed in Hong Kong.
The EO and the Employees’ Compensation Ordinance (Cap. 282) (ECO) are applicable to both local and migrant workers, irrespective of their sex or race, as explained in paragraphs 272 and 277 in the previous report.
In its previous Concluding Observations, at paragraphs 64 – 65, the Committee was concerned over comments that FDHs were experiencing discrimination on the basis of their sex and/or gender and ethnic backgrounds, and that FDHs were subjected to lower wages, fewer holidays and longer working hours than that prescribed by law. The Committee is invited to note that the HKSAR is one of the few places in the world which grants to FDHs statutory labour rights and benefits same as those enjoyed by local workers. Details of HKSAR’s policies and measures in this regard are set out in Annex 11F.
The Government has taken note of the Committee’s recommendation in its previous Concluding Observations which urged the HKSAR to adopt legislation that fulfils the Domestic Workers Convention, 2011 (No. 189) of the International Labour Organisation. The said Convention has not been ratified by the PRC and has not been applied to the HKSAR at present. Nevertheless, as explained in the above paragraphs and Annex 11F, domestic workers, including FDHs, are already accorded equal and full protection as other workers under Hong Kong labour laws, and FDHs further enjoy additional rights and benefits prescribed in their SEC that are not usually available to local workers. We will continue to monitor the implementation of the said Convention in other places and study the feasibility of its application to the HKSAR as and when appropriate.
The Government has taken note of the concern raised by the Committee in its previous Concluding Observations on possible abuses by employment agencies (EAs) against FDHs. The Government has all along been taking rigorous enforcement actions against the malpractices of EAs. Details of policies and new developments in this regard since the previous report are set out in Annex 11G.
As reported under Article 6, the Government announced in March 2018 a comprehensive Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong (Action Plan) endorsed by a high-level, inter-bureaux/departmental Steering Committee chaired by the Chief Secretary for Administration. The Action Plan outlined a package of multi-faceted measures to tackle trafficking-in-persons and enhance protection of FDHs, including strengthening support and assistance to FDHs being exploited. Among other things, LD would set up a new dedicated FDH Division to ensure effective implementation of measures to enhance protection of FDHs, including setting up a dedicated channel (e.g. hotline with interpretation services) to provide support services to FDHs. Other support to FDHs and related promotion and publicity efforts are set out in Annex 11H.
The Committee has, in its Concluding Observations, recommended extending the “two-week” rule to ensure FDHs whose contracts have been terminated have sufficient time to search for other employment or file suits against their former employers. However, the rationale of the “two-week rule” is to allow sufficient time for the worker or FDH to prepare for departure, and to maintain effective immigration control by deterring job hopping and unauthorised employment after termination of contract; it is not to facilitate them to find new employers. The policy does not preclude imported workers or FDHs from working in Hong Kong again after returning to their place of domicile. The cost of return flights is fully borne by the employer.
Suitable flexibility is allowed for special cases where the Government may exercise discretion to permit FDHs whose contracts have been prematurely terminated to change employment without having to return to their place of domicile. From January to February 2018, 1 058 such applications (88.8% of the total number of such applications) were approved.
In the event that an FDH has to stay in Hong Kong to settle labour dispute, he/she may apply for extension of stay in Hong Kong. Flexibility will be exercised to extend the FDH’s stay on visitor condition to enable him/her to wait for the conclusion or determination of the case.
The “live-in requirement” forms the cornerstone of the HKSAR’s policy of importing FDHs. As in many other jurisdictions in the world, it has been the Government’s established policy that priority in employment should be given to the local workforce, and importation of workers should only be allowed where there is confirmed manpower shortage in a particular trade that cannot be filled by local workers. Based on this principle, FDHs have been imported since the early 1970s to meet the shortfall of local “live-in” domestic workers. Given that there is no shortage in the supply of local non-“live-in” domestic workers, any change to the “live-in requirement” will go against the rationale for importing FDHs and the fundamental policy that local employees should enjoy priority in employment. The legality of the “live-in requirement” was upheld by the Court of First Instance in its ruling on 14 February 2018 in respect of a judicial review application (HCAL 210/2016).
Measures to assist migrant workers exposed to abuse are set out in Annex 11I.
The Government attaches great importance in enhancing child care services to create a more enabling environment for women to make an informed choice to join or remain in the workforce.
The Government commissioned the Department of Social Work and Social Administration of The University of Hong Kong in December 2016 to conduct a Consultancy Study on the Long-term Development of Child Care Services. The Study reviews the existing child care services in Hong Kong and draws on the experience of other places in providing child care services. It also conducts an in-depth analysis of the objectives, contents, targets, financing modes, service models, demand and supply situation, facility planning, manpower and training, etc. of child care services in Hong Kong, and makes recommendations on the long-term development. It is expected that the Study will be completed within 2018. Details of enhancement to child care services are set out in Annex 11J.
LD has been acting as one of the facilitators in encouraging employers to adopt FFEPs. The work of LD in this regard is set out in Annex 11K.
EOC has continued to promote the concept of equal pay for work of equal value through publications and organising training sessions. EOC also produced three supplementary informative booklets to provide other practical information on equal pay issues and has arranged talks and workshops for employers, women’s groups and other stakeholders.
2 LAB is a representative tripartite consultative body advising the Government on labour matters.
3 An employee engaged under a continuous contract is defined as one who has been employed under a contract of employment by the same employer for four weeks or more and has worked for 18 hours or more in each week (“4-18 requirement”).
4 Excluding government employees and live-in domestic workers to whom SMW does not apply.
5 The multi-pillar model advocated by the World Bank does not require the presence of all five pillars. Instead, it stresses that a one-size-fits-all retirement protection system does not exist.
