Court of Appeal of the Hong Kong Special Administrative Region, Civil Appeal No. 218 of 2005 (appeal of decision HCAL No. 30/2003)
Basic Law of the Hong Kong Special Administrative Region
The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and international labour Conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.
Direct resolution of a dispute on the basis of international law
Migrant workers/ Tax imposed on employers recruiting foreign employees/ Alleged violation of the principle of equality of treatment between national and non-national workers recognized by ILO Convention No. 97/ Direct resolution of a dispute on the basis of international law
Foreign workers employed as domestic workers referred this matter to the courts of Hong Kong, contesting the validity of the tax imposed on employers recruiting foreign labour. The claimants based their request on the claim, among other arguments, that the tax created a difference in treatment between the domestic and foreign workers, in violation of the principle of equality of treatment raised by Article 6(1) of ILO Convention No. 97 on Migration for Employment, applicable to Hong Kong.
Before deciding the root of the case, the Court had to judge the applicability of ILO Convention No. 97 in domestic law. In that regard, the Court declared the following:
The suggestion has been made on behalf of the respondent that absent local legislation the Convention has no domestic effect in Hong Kong, although it is accepted that its application to Hong Kong as a matter of international law gives rise to legitimate expectations that might avail those in the position of the appellants who seek to pray it in aid. It seems to us arguable that the Convention has domestic effect to this extent, that if there is a provision in law in Hong Kong that does restrict labour rights in a manner prohibited by the Convention as applied to Hong Kong, that restriction would contravene Article 39 through that Article’s requirement that the restrictions on rights enjoyed by Hong Kong residents shall not contravene the provisions of Article 39(1); but it is not necessary to decide the point, because the respondent accepts that at the least there is created the legitimate expectation to which we have referred.
After having determined that ILO Convention No. 97 was applicable in domestic law, the Court took up the main issue of the case in order to determine whether the tax on the recruitment of foreign workers violated Article 6(1) of that Convention. The Court found that the equality of treatment provided for by that provision was applicable to migrant workers who had obtained the right to work in a country that had ratified the Convention. The tax challenged was a prerequisite and a condition for granting work permits to foreign workers, and it did not fall under the Convention’s scope of application. As the basis of its reasoning, the Court referred to the General Survey of the ILO Committee of Experts on the Application of Conventions and Recommendations concerning migrant workers and published in 1999: “These Conventions have the purpose of protecting working conditions for migrant workers already legally living in the host country in order to carry out the work for which they had been recruited. They do not have the purpose of dictating who should or should not be recruited or which should be the conditions for issuing visas.”3
Thus, after having considered that ILO Convention No. 97 was applicable in domestic law, the Court of Appeal for the Hong Kong Special Administrative Region turned to the work of the Committee of Experts in order to decide that the tax linked to the recruitment of foreign workers was not contrary to that Convention and that it was indeed valid.