Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee takes note of the information contained in the Government’s report. It also takes note of the information provided by the Government representative to the Conference Committee in June 2004 and the discussion that followed. The Committee notes that the Conference Committee took note of the Government’s statement that it was in the process of examining measures to guarantee a better application of the Convention, in particular with regard to the promotion of collective bargaining, and expressed the firm hope that measures would be taken without delay to guarantee the full implementation of the Convention.

Article 1 of the Convention. The Committee’s previous comments concerned the need to provide further protection against anti-union discrimination. The Committee had noted the information provided by the Government to the effect that it had 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 - an approach endorsed by the tripartite Labour Advisory Board.

The Committee notes from the Government’s report that the Government has been working on a draft amendment bill on this issue but given the complexity of the matter more time is needed. The Committee requests the Government to indicate in its next report any progress made in the adoption of the bill. Noting that this issue has been under examination since 1999, the Committee hopes that the bill will be adopted as soon as possible.

Article 4. 1. Measures to promote collective bargaining. The Committee’s previous comments concerned the need to strengthen the collective bargaining framework, pursuant to comments made by the International Confederation of Free Trade Unions (ICFTU) and the Hong Kong Confederation of Trade Unions (HKCTU) and the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1942 with regard to low levels of coverage of collective agreements which are moreover not binding on the employer, as well as the absence of an institutional framework for trade union recognition and collective bargaining.

The Committee notes the Government’s statement that it subscribes fully to Article 4 of the Convention and is committed to promoting voluntary and direct negotiations between employers and employees or their respective organizations. It also notes the measures described by the Government with a view to the promotion of collective bargaining, including promotion of effective communication at enterprise level, notably through seminars and promotional materials, an informal survey on the mode of labour-management communication, and encouragement of voluntary negotiations, by promoting tripartite dialogue at the industry level through industry-level tripartite committees (in the catering, construction, theatre, logistics, property management, printing, hotel and tourism, cement and concrete as well as retail industries). The Government emphasizes with regard to the tripartite committees that they are not merely advisory bodies. They provide, on the contrary, an effective forum for major employers’ and employees’ organizations to discuss labour issues of mutual concern and hence facilitate voluntary communication and negotiations between them. During the reporting period, as a further measure to promote voluntary negotiation, special efforts were made by these tripartite committees to focus on industry-specific people management issues. As a result, employers’ and employees’ organizations in some industries, such as property management and hotel and tourism industries, have agreed on industry-specific good people management guidelines which place specific emphasis on the importance of effective communication between employers and employees. In September 2004, the three tripartite committees on catering, retail and hotel and tourism industries jointly organized a large-scale labour relations seminar for employers and employees of these industries.

The Committee also notes from the Government’s report that, although statistics on collective bargaining are not available, collective agreements are quite common in some trades such as printing, construction, public bus and air transport industries as well as ship maintenance and the goods loading and unloading industries. Many of these agreements have benefited from the Labour Department’s conciliation services.

The Committee takes note of this information, in particular, the adoption of collective agreements in the abovementioned sectors. It requests the Government to indicate in its next report any further sectors covered by collective agreements, as well as the level of coverage (number of collective agreements and workers covered). Noting, moreover, that effective communication and tripartite dialogue cannot function as a substitute for bipartite negotiations, although they may be useful tools for the promotion of a positive industrial relations climate at the highest level, the Committee requests the Government to continue to provide information on measures adopted or contemplated for the promotion of new bipartite collective agreements through the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations.

2. Measures to promote collective bargaining for civil servants not engaged in the administration of the State. In its previous comments, the Committee had requested 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 notes from the Government’s report that the Government has established within the civil service an elaborate three-tier staff consultation mechanism which operates in compliance with the spirit and principles of Article 4 of the Convention for consultation between management and staff on various issues of concern to civil servants, including terms and conditions of employment of public employees, regardless of whether they are engaged in the administration of the State. The Government will build on this machinery and put in place customized procedures or forums to engage staff representatives in more intensive consultation on the terms and conditions of employment of civil servants, where necessary and appropriate. It is now working closely with staff on the development of an improved civil service pay adjustment mechanism to underpin the established policy of maintaining civil service pay at a level broadly comparable to that of the private sector. To this end, in April 2003, the Government set up a consultative group which already functions as a regular forum for intensive discussions with the participation of the staff sides of the four central consultative councils and the four major service-wide staff unions.

Taking due note of this information, the Committee requests the Government to indicate in its next report any measures discussed or adopted as a result of the work of the consultative group on an improved civil service pay adjustment mechanism. Moreover, noting once again that public servants who are not engaged in the administration of the State have the right to negotiate collectively their conditions and terms of employment, the Committee once again requests the Government to indicate, in its next report, any measures taken with a view to extending the right to collective bargaining to this category of civil servants. The Committee finally requests the Government to provide further information on the various activities covered by the civil service with a view to determining those categories of civil servants who are not engaged in the administration of the State.