TNAG-0087-FCO40-123-Conditions-of-employment-for-Hong-Kong-Chinese-working-in-th-1969 — Page 18

CODE 18-75

Reference... MWB.18/2..

C.C.

Mr. Foggon

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Mr. G.I. Brown

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I spoke to you on the telephone about this draft. I have one criticism to make of it but before I mention this point I would like to refer to earlier papers. In my lengthy minute at (18) and enclosure I did not in fact recommend writing to Mrs. Jeger because I had really only been asked to examine this whole file and comment on it. I thought that a letter to Mr. Burn would be a good thing but I appreciate now that you have to write to Mrs. Jeger and not Mr. Burn. You have in fact in the latest draft covered most of the points I thought we ought to try to get across to Mr. Burn though of course more concisely.

2. I did not mean to give the impression that I thought Mr. Burn was an "innocent abroad". I think he is angry, muddled, stupid and ill-advised. With better advice and understanding of U.K. legislation he would not be in such a muddle. He was bringing people from Hong Kong before the Hong Kong law came into force and in those days was not compelled by law to pay the fares of workers coming from Hong Kong to the U.K. When the law came into force it required him to pay the fares of aliens only, coming from Hong Kong. This is a justifiable reason for being somewhat annoyed.

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3. I am sorry that my paragraphs 27 and 30 as read by others seem to have caused confusion and I agree that they are not as clear as they should be. What I intended to make clear was that Mr. Burn would be obliged with the Home Office to ensure repatriation, regardless of the law of Hong Kong. If he were to pay passages to this country he could treat that as an advance and get the money back from the workers. However, because the law requires him to pay the fare from Hong Kong to Britain it puts him in the position of not being able to get the money refunded by the worker and yet having to pay repatriation as well.

4. I note that someone has also commented on paragraph 34 of my earlier minute mentioning Convention No. 50 · this is the point which has been entered into the draft and which I have to point out is not in fact correct.

5. Convention 50 applies to workers who are "recruited" and this expression is carefully defined for the purpose of the Convention in Article 2.

When Hong Kong was drafting their law they stated that there is in fact no question of anyone being "recruited" in Hong Kong (the system of "recruiting" has very nearly died out everywhere and dates from very early colonial days and particular practices in African countries). The Hong Kong Government therefore prohibited "recruitment" in Section 14 of their law. Thus Article 20 of Convention 50 is inapplicable since it refers to the expenses of the journey of "recruited" workers. As it is illegal to "recruit" workers in Hong Kong there can be no recruited workers and Article 20 does not apply to workers who are not recruited. This was discussed at the time when the law was drafted and I.1.0. agreed that in countries where there is never any recruiting all the country need do to implement the Convention is to make recruiting unlawful none of the rest of the Convention need then be translated into law

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a great economy of paper if nothing else! Convention 64 is another story and is indeed implemented by this law. The law goes beyond what the Convention requires because in Section 5 (2) (j) it requires the employer to pay his outward passage. The Convention says that the employer who has brought a worker to the place of employment must repatriate him except in certain circumstances. The exceptions include termination of the contract by agreement and also termination of the contract on the Papdication of either of the parties.

6. My point has always been that employers in the U.K. who want aliens to work for them almost invariably have to pay their fare to Britain, though they may sometimes treat that as an advance and have an arrangement for repayment in instalments by deduction from salary; the Home Office requires exployers to ensure repatriation. That is why we in London felt that workers coming from Hong Kong to Britain could have been left out of this law (and not only those qualified as Commonwealth'migrants. When a worker leaves the employer to whom he first came the question of his repatriation will arise

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