Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) and by the Hong Kong Confederation of Trade Unions (HKCTU) in communications dated 30 August 2013, which refer to the matters examined by the Committee and allege numerous violations of the Convention in practice. The Committee requests the Government to provide its observations thereon.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had 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 and expressed the hope that this bill would soon be adopted. The Committee notes that the Government indicates in its report that it has revised the proposal concerning those amendments so as to provide that an employer who fails to comply with the order of the Labour Tribunal will be required to pay a further sum to the employee; non-payment of this amount would become a criminal offence. The Government also indicates that it has consulted the Labour Advisory Board and the Panel on Manpower of the Legislative Council on the revised proposal and that it is currently drafting the amendment legislation. The Committee reiterates its hope that this bill, which has been under examination since 1999, will be adopted without further delay 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. Promotion of collective bargaining. The Committee recalls that its previous comments referred to the need to strengthen the collective bargaining framework, in particular in the light of the low levels of coverage of collective agreements, which were not binding on the employer, and the absence of an institutional framework for trade union recognition and collective bargaining. The Committee notes that the Government reiterates the following: (i) employers and employees are free to negotiate and enter into collective agreements on the terms and conditions of employment; (ii) collective agreements are concluded in various economic sectors; (iii) the Labour Department produces and distributes free promotional materials on effective communication and consultation, and organizes seminars on effective labour-management communication and good management practices; (iv) the Government promotes voluntary and direct negotiation between employers and employees or their organizations at different levels; (v) the Government will continue to use tripartite committees to promote bipartite voluntary negotiation at the industrial level; and (vi) it will continue taking the above measures to help foster an environment and atmosphere conducive to voluntary negotiation between employers’ and workers’ organizations at the industrial and enterprise levels. The Committee notes, however, that according to the HKCTU, the Government rejects the adoption of collective bargaining legislation, which would also set up an institutional framework for trade union recognition, arguing that such legislation would harm the competitiveness of the Hong Kong economy. The HKCTU further alleges that employers largely ignore the unions’ call for collective bargaining and refers to several such examples. With regard to the tripartite dialogue referred to by the Government, the HKCTU contends that the tripartite committees are consultative only in nature and have no legally binding responsibility to establish or promote collective bargaining at the enterprise or industrial levels. The Committee recalls that Article 4 of the Convention is aimed at promoting free and voluntary bargaining between workers’ organizations and an employer or employers’ organizations. It considers that the principle of tripartism, which is particularly appropriate for the regulation of questions of a larger scope (drafting of legislation, formulating labour policies), should not replace the principle of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of employment. The Committee therefore requests the Government, in consultation with the social partners, to take additional appropriate measures, including of a legislative nature, in order to encourage and promote collective bargaining between trade unions and employers and their organizations.

Article 6. Collective bargaining in the public service. The Committee had previously requested 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 notes that the Government reiterates that all civil servants are engaged in the administration of the Government as they are responsible for, among other things, formulating policies and strategies, as well as performing law enforcement and regulatory functions, and that every civil servant, irrespective of his or her grade or rank, is part and parcel of the civil service and contributes in various ways to the administration of the State. The Government confirms that all civil servants, together with those employed in various independent bodies, which provide impartial advice to the Government on matters concerning pay and conditions of service in the civil service, are excluded from the application of the Convention. The Government indicates, however, that it had established an effective system for consultation with staff on matters affecting their terms and conditions of employment. The Committee recalls that pursuant to the Convention, 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. The Committee requests the Government, in consultation with the social partners, to take the necessary measures to guarantee this right through an adequate institutional framework. It requests the Government to provide information on all measures taken or envisaged in this respect.