Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 31 August 2016 referring to matters being examined by the Committee, and alleging violations of the Convention in practice, such as anti-union dismissals and violations of collective bargaining rights. The Committee also notes the observations from the Hong Kong Confederation of Trade Unions (HKCTU) received on 1 September 2016 concerning the application of the Convention. The Committee requests the Government to provide its comments on these observations. It notes the Government’s comments on the 2013 ITUC and HKCTU observations.

Article 1 of the Convention. Adequate 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 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 had reiterated its hope that the bill, which had been under examination since 1999, would be adopted without further delay. The Committee notes that the Government indicates that: (i) it fully recognizes the importance of protecting the workforce against acts of anti-union discrimination and is committed to safeguarding the rights of workers in this respect; (ii) the Government does not, and will not, tolerate contravention of the law by employers or persons acting on their behalf; (iii) high priority is accorded by the Government to investigating complaints on suspected anti-union discriminatory acts; and (iv) the effectiveness of the Government’s effort is, to a certain extent, reflected by the low number of such complaints received each year. In this regard, the Committee observes that according to the HKCTU the low number of complaints and the even lower number of successful litigation cases against employers (not more than two since 1997) evidence the virtual deprivation of protection against anti-union discrimination in Hong Kong. The Committee notes that the Government announced that it has introduced in March 2016 the Employment (Amendment) Bill 2016 into the Legislative Council (LegCo), and that, as at the end of the period under review, the Bill was under the scrutiny of LegCo. The Committee notes however that, according to the HKCTU observations, the fine foreseen in the Bill for refusal to comply with a reinstatement order amounted to only 50,000 Hong Kong dollar (HKD) (US$6,410) and that, following an attempt to amend the Bill to double the fine, the decision was taken to withdraw the Bill so that it can be discussed anew by the Labour Advisory Board. The Committee expects that the Bill, which has been under examination for 17 years, will be adopted without any further delay so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and will be effectively enforced in practice. It requests the Government to indicate any progress achieved 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 the Government’s indications that: (i) collective bargaining, if it is to be effective, should be voluntary; collective bargaining compelled by law might not be conducive to yielding results as in voluntary negotiation; (ii) the Legislative Council has voted down motion debates on calls for compulsory collective bargaining five times in 1998, 1999, 2002, 2009 and 2013; (iii) employers and employees or their respective organizations are free to negotiate and enter into collective agreements on the terms and conditions of employment, and where its conciliation service is used, the Labour Department encourages employers and employees to draw up agreements on the terms and conditions of employment agreed upon by both sides; (iv) voluntary negotiation between employers and employees underpinned by the conciliation service has contributed to harmonious industrial relations: in 2014 and 2015, the average number of working days lost owing to strikes was only 0.04 and 0.03 respectively per 1,000 non-government salaried employees and wage earners; (v) collective agreements have been reached on issues relating to the terms and conditions of employment in certain industries or trades including printing, construction, public bus, air transport, food and beverage processing, pig-slaughtering and elevator maintenance; (vi) measures appropriate to local conditions have been taken to promote voluntary and direct negotiations between employers and employees or their respective organization, for instance: the Labour Department produced a variety of promotional materials; organized various seminars and talks to promote effective labour management communication and a company-visit-cum-sharing session for representatives of trade associations, employers and employees’ unions of various industries; at enterprise level, by encouraging employers to maintain effective communication and consult on employment matters; and at industry level, via the tripartite committees, which meet regularly and conduct discussions on issues of mutual concern (such as amendments to the Employment Ordinance), and actively provide views (for example, to the statutory Minimum Wage Commission).

Observing that the promotional measures at industry-level are limited to the tripartite committees, the Committee reiterates 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 enshrined in the Convention of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of employment. Furthermore, noting that the Government mentions on several occasions the measures “taken to promote voluntary and direct negotiations between employers and employees or their respective organizations”, the Committee recalls that where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other workers’ representatives to bargain collectively not only weakens the position of the trade union, but also undermines the right to collective bargaining. In light of the HKCTU observations that negotiated collective agreements are not implemented and that employers generally refuse to recognize unions for the purposes of collective bargaining, the Committee recalls that the principle of negotiation in good faith, which is derived from Article 4 of the Convention, encompasses the recognition of representative organizations and the mutual respect of the commitments made and the results achieved through bargaining. The Committee requests the Government, in consultation with the social partners and in line with the above considerations, to step up its efforts to take effective measures, including of a legislative nature, in order to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations.

Article 6. Collective bargaining in the public sector. 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. The Committee notes that the Government reiterates that: (i) all civil servants are engaged in the administration of the Government and thus excluded from the application of the Convention, as they are responsible for 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 contributes to the administration of the State; and (ii) it has established an elaborate three-tier staff consultation mechanism through which staff representatives are extensively consulted on the terms and conditions of employment. The Committee also notes the Government’s indication that: (i) in the process for determining matters for consultation, staff representatives may submit demands and put forward counter-proposals in response to Government offers; and (ii) various independent bodies, such as the Standing Commission on Civil Service Salaries and Conditions of Service, provide impartial advice to Government after having taken into account the views expressed by staff and management.

The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, public servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (for instance, employees in public enterprises, municipal employees and those in decentralized entities, and public sector teachers). The Committee recalls that only public servants engaged in the administration of the State may be excluded from the scope of the Convention and that the establishment of simple consultation procedures for public servants instead of real collective bargaining procedures is not sufficient. The Committee requests the Government to ensure that public servants not engaged in the administration of the State, including teachers and employees in public enterprises, enjoy the right to collective bargaining, and to provide information in this respect.