Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning issues already raised by the Committee and the additional comments communicated by the ITUC and the Hong Kong Confederation of Trade Unions (HKCTU) dated 31 August 2011, referring notably to the deprivation of effective protection against anti-union discrimination in Hong Kong evidenced by the low number of complaints filed by the Labour Department and the even lower number of successful cases against employers – not more than two since 1997. The Committee requests the Government to provide its observations thereon.

Article 1 of the Convention. Protection against anti-union discrimination. In several of its previous comments, the Committee referred to the need to provide further protection against anti-union discrimination and noted the Government’s reference to 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. The Committee had further noted that the Government indicated that: (i) there was ongoing progress on amendments to introduce new provisions on mandatory reinstatement and re-engagement under the Employment Ordinance, Chapter 57; (ii) upon completion of the draft, it would be introduced into the Legislative Council; and (iii) it has committed to introduce a bill which criminalizes non-payment of labour tribunal awards. The Committee notes that the Government indicates in its report that the new bill will also include a provision of a further sum to be payable to the employee in case the employer fails to comply with the compulsory order of reinstatement or re-engagement. The Committee once again expresses the hope that this bill, which has been under examination since 1999, will soon be adopted so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and requests the Government to indicate any progress made in this respect.

Article 4. Measures to promote collective bargaining. Several of the Committee’s previous comments concerned the need to strengthen the collective bargaining framework, in particular with respect to the low levels of coverage of collective agreements which were not binding on the employer (see Committee on Freedom of Association, Case No. 1942), and the absence of an institutional framework for trade union recognition and collective bargaining. The Committee previously requested 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 and to indicate any further sectors covered by collective agreements, as well as the level of coverage (number of collective agreements and workers covered). In addition, the Committee previously requested the Government to take all the necessary measures to continue to promote voluntary bipartite negotiations in the private sector and to provide additional information concerning new sectors in which collective agreements have been concluded. The Committee had previously noted that the Government referred to promotional materials, seminars, and operational activities between workers’ and employers’ representatives and indicated that collective agreements had been negotiated in the food processing and security services. The Committee appreciates the Government’s indication in its report that during the reporting period, collective agreements in the pig-slaughtering, property management and some other public transport services trades were noted. In its previous comments, the Committee had also noted that the Government stated that: (i) it would continue to use tripartite committees as one of the useful channels for promoting bipartite voluntary negotiation at the industry level; (ii) it had been promoting direct and voluntary negotiations between employers’ and workers’ organizations; and (iii) it had taken measures appropriate to local conditions to promote voluntary and direct negotiations between employers and employees or their respective organizations. The Committee notes that the Government reiterates these affirmations in its report. Taking into account that the ITUC refers to a collective bargaining coverage of only 1 per cent of the population, the Committee once again requests the Government to continue to promote collective bargaining and to provide information in this regard.

Article 6. Measures to promote collective bargaining for civil servants not engaged in the administration of the State. The Committee previously requested the Government to indicate the different categories and functions of the civil servants so as to identify which of them are in the administration of the State and which are not. The Committee had noted that, according to the ITUC, all employees in the public sector are deprived of the right to engage in collective bargaining. The Committee once again notes that the Government again reports that all civil servants in Hong Kong, i.e. persons employed to work in government bureaux/departments, are engaged in the administration of the State as they are responsible for, among others, formulating policies and strategies and performing law enforcement and regulatory functions. Noting that it follows from the Government’s report that in the public sector there are consultations but not collective bargaining, the Committee recalls that, according to Article 4, civil servants not engaged in the administration of the State should enjoy not only the right to be consulted on their conditions of employment but also the right to bargain collectively and once again requests the Government to ensure this right. The Committee once again requests the Government to indicate the different categories and functions of the civil servants so as to identify which of them are engaged in the administration of the State and which are not. The Committee also requests the Government to indicate any agreement concluded in the public sector.