Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee takes note of the Government’s report. The Committee also takes note of the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Hong Kong Confederation of Trade Unions (HKCTU) concerning anti-union discrimination and obstacles to collective bargaining. The Committee notes the Government’s observations in response to the ICFTU’s comments.

Article 1 of the Convention. The Committee takes note of the ICFTU and HKCTU comments which refer to widespread acts of anti-union discrimination due to deficiencies in the legal regime of protection against anti-union discrimination. The Committee notes that the Government refutes these comments and emphasizes that legislation affords adequate protection in this respect. The Committee also notes that the Government has been working on the drafting of an amendment Bill that would empower the Labour Tribunal to make an order of reinstatement/re-engagement in cases of unreasonable and unlawful dismissal without the need to secure the employer’s consent. This approach has been endorsed by the Labour Advisory Board which has an equal number of employer and employee representatives. The Committee requests the Government to keep it informed of developments in this respect.

Article 4. The Committee also observes that according to the ICFTU comments, less than 1 per cent of the workforce is covered by collective agreements, which are moreover not legally binding, while the absence of an institutional framework for union recognition and collective bargaining (this specific point is also stressed by the HKCTU), including in the public sector, forces to some extent trade unions to serve mainly as pressure groups and organizers or advisers of workers. The Committee notes that the Government refers to the voluntary nature of negotiations in the framework of the Convention. The Committee recalls, however, that in its previous comments it 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 regulating the terms and conditions of employment by means of collective agreements, since the Government had stated that machinery for negotiation had not been set up. The Committee recalls, moreover, that its comments were made pursuant to the conclusions reached by the Committee on Freedom of Association in Case No. 1942, with respect to the appropriateness of adopting objective procedures for determining the representative status of trade unions for collective bargaining purposes in view of the absence of legal protection for collective bargaining, the marginal representation of trade unions, and the fact that only very few workers and industries were covered by collective agreements which were moreover not binding and often not followed by the employers (311th Report, paragraphs 235-271, approved by the Governing Body at its November 1998 session).

In this context, the Committee notes with regret that according to the Government’s report, in December 2002 the Legislative Council once again voted down a motion calling for the enactment of legislation on collective bargaining. Nevertheless, the Committee recalls that in previous reports, the Government had stated that a few collective agreements had been concluded in the industries of construction, printing, ship maintenance, goods loading and unloading, and transportation, while the Labour Department had taken measures to encourage and promote voluntary and direct negotiation between employers and employees or their respective organizations at the enterprise level and undertook conciliation, whenever voluntary negotiations failed, to encourage the parties to sign an agreement. The Committee hopes that the Government will take additional measures in this direction.

The Committee also notes from the report that the Government’s policy is to encourage and promote collective bargaining on a voluntary basis and to continue to promote tripartite dialogue through nine tripartite committees in the sectors of catering, construction, theatre, warehouse and cargo transport, property management, printing, hotel and tourism, cement and concrete as well as the retail industries. The Committee notes that, according to the Government, these tripartite committees seek to foster an environment conducive to collective bargaining and have assisted the Government in producing sample (apparently individual) employment contracts (catering, cargo transport and construction industries) and reference guides (hotel and tourism industry).

The Committee emphasizes that tripartite committees do not constitute negotiating bodies in the meaning of Article 4 of the Convention since these committees include government representatives in addition to employers’ and workers’ organizations and seem to play a merely advisory role. With respect to the measures taken so far by the Government to promote bipartite collective bargaining, the Committee considers that much further progress needs to be made. The Committee therefore once again urges the Government to indicate in its next report any further measures adopted or contemplated including the promotion of new bipartite collective agreements, as well as any new draft legislation which encourages and promotes the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

With regard to the public sector in particular, the Committee notes the Government’s statement that it sees no need for a collective bargaining arrangement with civil servants given the existence of a well-established and widespread consultative machinery in this sector with relevant staff unions/associations which the Government describes in detail; in cases of considerable change in conditions of service when an agreement cannot be reached, the matter "may" be referred to an independent commission of inquiry whose recommendations are binding. The Committee notes, however, that "while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment including wages" (see General Survey on freedom of association and collective bargaining, paragraph 262). The Committee therefore requests the Government to take all necessary measures so as to guarantee the right of public employees who are not engaged in the administration of the State, to negotiate collectively their conditions and terms of employment.

The Committee also notes from the Government’s previous report that it does not have statistics on the number of collective agreements as there is no statutory requirement of reporting the collective agreements reached. The Committee requests the Government to take all necessary measures so as to collect information in this respect and to provide detailed information in its next report on the number of collective agreements reached, as well as the sectors and number of workers covered by such agreements.