Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Hong Kong Special Administrative Region (Ratification: 1997)

The Committee notes the information supplied by the Government in its report.

Article 1 of the Convention. In its previous comments, the Committee had recalled that Article 1(2)(b) of the Convention covered in addition to dismissal, acts which "otherwise" prejudiced a worker by reason of union membership or because of participation in union activities such as transfer, relocation, demotion or denial of promotion, deprivation or restrictions of all kinds on remuneration, social benefits and vocational training and had requested the Government to review its legislation with a view to ensuring that provision was made for protection against all acts of anti-union discrimination, and not just dismissals. The Committee notes the Government’s statement that sections 21B and 21C of the Employment Ordinance provide protection for employees against various acts of anti-union discrimination, including but not confined to dismissals, during employment. The Government indicates that section 21B(1) provides for the right of employees to trade union membership and to participate in union activities. Under section 21B(2) of the Employment Ordinance, an employer who dismisses, penalizes, or otherwise discriminates against an employee for exercising his trade union rights commits an offence and is liable, on conviction, to a fine of HK$100,000. The Committee takes due note of this information.

With regard to the issue of the requirement of prior mutual consent of both the employer and employee concerned in the absence of which a worker may not be reinstated but instead awarded compensation, the Government indicates that it has reviewed the existing provisions on reinstatement under the Employment Ordinance. The recommendation of the review is that the relevant provisions be amended to the effect that, where an employee, who has been found to be unreasonably and unlawfully dismissed (including dismissal on grounds of anti-union discrimination), makes a claim for reinstatement or re-engagement, the Labour Tribunal may make an order of reinstatement or re-engagement if it considers it appropriate without the need to secure the consent of the employer. The Government adds that an Employment (Amendment) Bill to give effect to the legislative proposal is under way. The Committee takes note of this information with interest and requests the Government to keep it informed of developments regarding this amendment to the Employment Ordinance which would enable the Labour Tribunal to make an order of reinstatement/re-engagement without the need to secure the employer’s consent if the Tribunal considers it appropriate.

Article 4. In its previous comments, the Committee had requested the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers’ and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee had also requested the Government to indicate the number of collective agreements in force as well as the number of workers and industries covered by such agreements during the reporting period.

The Committee notes the Government’s statement that the setting up of the Workplace Consultation Promotion Unit within the Labour Department in 1998 demonstrates its commitment to promoting voluntary collective bargaining. At the enterprise level, the unit provides a comprehensive range of services to encourage employers to enter into direct negotiations with their employees or unions on employment issues. At the industry level, the unit has made remarkable progress in promoting tripartite dialogue by increasing the number of industry-based tripartite committees from two to eight in the past three years. The Government indicates that collective agreements have been concluded in some companies. At the industry or trade level, collective agreements have been reached in two construction trades, printing, ship maintenance, as well as the goods loading, unloading and transportation industries. However, as there is no statutory requirement of reporting the collective agreements reached, the Government does not have statistics in this respect. Finally, the Government points out that in 1998 and 1999, the Legislative Council debated and voted down twice motions calling for the enactment of legislation on collective bargaining. The Government respects the views of the Legislative Council and considers that at this stage there is no imminent need to introduce legislation on collective bargaining.

The Committee notes the explanations given by the Government concerning the efforts made at the enterprise and industry levels with a view to fostering an environment conducive to collective bargaining. The Committee must recall however that the right to bargain freely conditions of work with employers is an essential element of freedom of association and trade unions should have the right, through collective bargaining, to seek to improve the living and working conditions of those whom the unions represent. In this respect, the Committee had noted with concern, in its previous direct request to the Government, the conclusions of the Committee on Freedom of Association in Case No. 1942 (311th report, paragraphs 235-271, approved by the Governing Body at its November 1998 session). The Committee on Freedom of Association had noted, inter alia, that the absence of legal protection for collective bargaining had resulted in the marginal representation of trade unions in Hong Kong with only very few workers covered by collective agreements in a very limited number of industries, such as some construction trades, printing and stevedore, but that the agreements reached were not binding and very often not followed by the employers. The Committee on Freedom of Association had also considered that the case at hand furnished a clear illustration of the appropriateness of adopting provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes.

In light of the obligation incumbent upon the Government to promote collective bargaining as defined in Article 4 and the absence of legal stipulation or protection thereof as noted by the Committee on Freedom of Association, the Committee once again requests the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers’ and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee further requests the Government to keep it informed of developments in this regard and reminds it that it may avail itself of ILO technical assistance on this issue.